Opinion
No. 2021-06812 Index No. 23895/11
10-30-2024
Jennifer E. Miller-Albert, etc., appellant, v. EmblemHealth, etc., et al., defendants, Scott Andes, etc., respondent.
Aguwa & Metu, P.C., Jamaica, NY (Chijioke Metu of counsel), for appellant. Sheeley, LLP, New York, NY (Jon Lichtenstein of counsel), for respondent.
Aguwa & Metu, P.C., Jamaica, NY (Chijioke Metu of counsel), for appellant.
Sheeley, LLP, New York, NY (Jon Lichtenstein of counsel), for respondent.
ANGELA G. IANNACCI, J.P., JOSEPH J. MALTESE, LILLIAN WAN, DONNA-MARIE E. GOLIA, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated September 8, 2021. The order, insofar as appealed from, granted the renewed motion of the defendant Scott Andes for summary judgment dismissing the complaint insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the renewed motion of the defendant Scott Andes for summary judgment dismissing the complaint insofar as asserted against him is denied.
On April 8, 2010, John Albert (hereinafter the decedent) had his first consult with the defendant Scott Andes with complaints of abdominal pain. On May 5, 2011, a CT scan of the decedent's abdomen revealed multiple tumor masses in the right and left lobes of the decedent's liver "consistent with metastatic disease." The decedent was diagnosed with inoperable liver cancer and subsequently died on March 18, 2012.
The plaintiff commenced this action against Andes, among others, inter alia, to recover damages for medical malpractice. In an order dated September 8, 2021, the Supreme Court, among other things, granted Andes's renewed motion for summary judgment dismissing the complaint insofar as asserted against him. The plaintiff appeals.
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Sunshine v Berger, 214 A.D.3d 1020, 1022 [internal quotation marks omitted]). "Thus, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries" (Rybek v New York City Health & Hosps. Corp., 228 A.D.3d 968, 968 [internal quotation marks omitted]).
"To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice" (Glassman v Caremount Med., P.C., 226 A.D.3d 878, 879 [internal quotation marks omitted]). However, "'[b]are conclusory assertions' by 'defendants that they did not deviate from good and accepted medical practices, with no factual relationship to the alleged injury, do not establish that the cause of action has no merit so as to entitle defendants to summary judgment'" (DiLorenzo v Zaso, 148 A.D.3d 1111, 1112, quoting Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; see Neumann v Silverstein, 227 A.D.3d 914, 916). "A defendant's failure to satisfy this prima facie burden requires denial of the motion, regardless of the sufficiency of the opposing papers" (Ciceron v Gulmatico, 220 A.D.3d 732, 734).
Here, Andes failed to establish his prima facie entitlement to judgment as a matter of law. The affidavit and supplemental affidavit of Andes's expert physician, Reed E. Phillips, were insufficient to establish the absence of any departure from good and accepted medical practice (see Neumann v Silverstein, 227 A.D.3d at 916). Phillips's opinion that Andes did not depart from the standard of care by failing, inter alia, to obtain the decedent's prior medical records, to order a CT scan, MRI, or other imaging, and to timely diagnose the decedent with liver cancer, as well as his opinion that the decedent's cancer was incurable by the time the decedent first treated with Andes, was speculative and conclusory and otherwise insufficient to demonstrate that Andes comported with good and accepted standards of practice in his care and treatment of the decedent or that any alleged departure was not a proximate cause of the decedent's injuries and ultimate death (see id.; Ciceron v Gulmatico, 220 A.D.3d at 735; Garcia-DeSoto v Velpula, 164 A.D.3d 474, 475).
Since Andes failed to establish his prima facie entitlement to judgment as a matter of law, it is unnecessary to review the sufficiency of the plaintiff's opposition papers (see Neumann v Silverstein, 227 A.D.3d at 916; Hiegel v Orange Regional Med. Ctr., 219 A.D.3d 910, 914).
Accordingly, the Supreme Court should have denied Andes's renewed motion for summary judgment dismissing the complaint insofar as asserted against him.
IANNACCI, J.P., MALTESE, WAN and GOLIA, JJ., concur.