Opinion
CA 03-00284
October 2, 2003.
Appeals from an order of Supreme Court, Erie County (Mintz, J.), entered January 15, 2003, which granted the motions for reargument of defendants CGF Health System, doing business as Millard Fillmore Hospital, and Ross Guarino, M.D. and upon reargument denied the motions of those defendants for summary judgment dismissing the complaint against them.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (SALLY BROAD OF COUNSEL), FOR DEFENDANT-APPELLANT ROSS GUARINO, M.D.
ROACH, BROWN, McCARTHY GRUBER, P.C., BUFFALO (GREGORY T. MILLER OF COUNSEL), FOR DEFENDANT-APPELLANT CGF HEALTH SYSTEM, DOING BUSINESS AS MILLARD FILLMORE HOSPITAL.
GROSS, SHUMAN, BRIZDLE GILFILLAN, P.C., BUFFALO (DAVID H. ELIBOL OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: PIGOTT, JR., P.J., GREEN, PINE, SCUDDER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.
Memorandum:
Plaintiff commenced this action to recover damages for decedent's personal injuries and wrongful death allegedly resulting from defendants' medical malpractice. Supreme Court properly denied the motion of defendant CGF Health System, doing business as Millard Fillmore Hospital (Hospital), for summary judgment dismissing the complaint against it. The complaint alleges that the pathology report prepared by the Hospital at the request of decedent's surgeon was not timely transmitted. The Hospital failed to meet its burden of demonstrating its entitlement to judgment as a matter of law ( see CPLR 3212 [b]). The evidence submitted by the Hospital is insufficient to establish its practices or procedures in the regular course of business with respect to transmitting such reports, and thus the Hospital failed to establish its entitlement to the presumption of the mailing and receipt of the report by decedent's surgeon ( cf. Schaefer v. HCP Health Care Plan, 283 A.D.2d 977). The court also properly denied the motion of defendant Ross Guarino, M.D. for summary judgment dismissing the complaint against him. Even assuming, arguendo, that Dr. Guarino met his initial burden on the motion, we conclude that plaintiff raised a triable issue of fact with respect to the existence of a physician-patient relationship between Dr. Guarino and decedent ( see Wienk-Evans v. North Shore Univ. Hosp. at Glen Cove, 269 A.D.2d 443; see also Gedon v. Bry-Lin Hosps., 286 A.D.2d 892, 893-894, lv denied 98 N.Y.2d 601).