Opinion
20062/2007
09-19-2019
Andrew PRICE and Eugene Price, as Executors of the Estate of Jean Price, Plaintiffs, v. Seymour ALTER, M.D., Marc Chernoff, M.D., Bruce Mayerson, M.D. and St. Catherine of Siena Medical Center, Defendants.
The Steven Siegel Law Group, 401 Franklin Avenue, Suite 300, Garden City, NY 11530, For Plaintiff Martin Clearwater and Bell, 90 Merrick Avenue, East Merrick, NY 11554, For Bruce Mayerson, M.D. Bartlett, McDonough, Bastone & Monaghan LLP, 32 Carleton Avenue, Central Islip, NY 11722, For St. Catherine of Siena Medical Center Rubin, Sheeley, Paterniti, Gonzalez & Kaufman LLP, 1225 Franklin Avenue, Garden City, NY 11530, For Seymour Alter, M.D. Attorneys did not file papers for Marc Chernoff, M.D.
The Steven Siegel Law Group, 401 Franklin Avenue, Suite 300, Garden City, NY 11530, For Plaintiff
Martin Clearwater and Bell, 90 Merrick Avenue, East Merrick, NY 11554, For Bruce Mayerson, M.D.
Bartlett, McDonough, Bastone & Monaghan LLP, 32 Carleton Avenue, Central Islip, NY 11722, For St. Catherine of Siena Medical Center
Rubin, Sheeley, Paterniti, Gonzalez & Kaufman LLP, 1225 Franklin Avenue, Garden City, NY 11530, For Seymour Alter, M.D.
Attorneys did not file papers for Marc Chernoff, M.D.
Carmen Victoria St. George, J.
The following papers were read upon this motion:
Notice of Motion/Order to Show CauseXXXXXX
Answering PapersXXX
Reply XX
Briefs: Plaintiff's/Petitioner's
Defendant's/Respondent's
Defendants Alter (Sequence 003), St. Catherine of Siena Medical Center (SCSMC) (Sequence 004) and Mayerson (Seq 005) each move for summary judgment dismissal of the medical malpractice complaint as alleged against each of them. Plaintiffs do not oppose any of these motions, stating that they are willing to voluntarily discontinue this action against each of the moving defendants; however, plaintiffs cross-move to compel each of the moving defendants to sign stipulations of discontinuance containing certain language striking the CPLR Article 16 affirmative defenses contained in the defendants' respective answers (Sequences 006, 007, 008). The moving defendants oppose the cross-motions, contending that any Article 16 claims would be extinguished as a matter of law by granting summary judgment.
For the reasons set forth herein, the moving defendants are each granted summary judgment upon the unopposed Motion Sequences 003, 004, and 005, and plaintiffs' cross-motion Sequences 006, 007 and 008 are each denied as moot.
Motion Sequences 003, 004, and 005- The Summary Judgment Motions
The amended verified complaint alleges a cause of action for malpractice against each of the defendants, a cause of action for lack of informed consent lodged against all the defendants, and a cause of action against all defendants based upon joint, several and vicarious liability. Plaintiff, a long-time patient of Dr. Alter's, presented to the emergency department of SCSMC on February 22, 2006 as the result of her falling at her home, possibly by slipping out of her wheelchair onto the floor. At the time of her presentation to the hospital, plaintiff's decedent (hereinafter, plaintiff) was seventy-two (72) years old, with a history of neurological issues, COPD, subarachnoid hemorrhage, difficulty walking, hand muscle weakness, dementia and ataxia resulting in gait abnormality. Plaintiff complained of an inability to stand when she arrived at the emergency department, but she could move her arms and legs. Essentially, plaintiff claims that as a result of the defendants' acts of malpractice, including a failure to timely diagnose and treat her spinal cord compression, she suffered numerous injuries, including partial paralysis of her lower extremities. Wrongful death is not claimed here. Plaintiff died in 2007 unrelated to her spine surgery and cord compression injury.
None of the moving defendants' amended answers asserts any cross-claims.
Dr. Alter was plaintiff's internist; Dr. Mayerson performed a neurological consult on plaintiff, and defendant Marc Chernoff, M.D. was the orthopedic surgeon who eventually operated on plaintiff on March 4, 2006. Plaintiff was admitted under the service of Dr. Alter on February 22, 2006 and was ultimately discharged on March 28, 2006, to a rehabilitation facility. Currently, plaintiff is proceeding only against Dr. Chernoff. Dr. Chernoff's answer does not assert any cross-claims, and Dr. Chernoff does not oppose the instant summary judgment motions.
Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact ( Cauthers v. Brite Ideas, LLC , 41 AD3d 755 [2d Dept 2007] ). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the plaintiff ( Makaj v. Metropolitan Transportation Authority , 18 AD3d 625 [2d Dept 2005] ).
The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact ( Winegrad v. New York University Medical Center , 64 MY2d 851, 853 [1985] ). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers ( Id. ) "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" ( Alvarez v. Prospect Hospital , 68 NY2d 320, 324 [1986] ).
" ‘The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage’ " ( Whitnum v. Plastic and Reconstructive Surgery, P.C. , 142 AD3d 495 [2d Dept 2016], quoting Geffner v. North Shore University Hospital , 57 AD3d 839, 842 [2d Dept 2008] ). A defendant "moving for summary judgment must establish, prima facie , either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries" ( Leigh v. Kyle , 143 AD3d 779 [2d Dept 2016], quoting Gillespie v. New York Hospital Queens , 96 AD3d 901, 902 [2d Dept 2012] ).
Each of the moving defendants has submitted, inter alia , medical records, deposition testimony of the parties, and the affirmations of medical experts on behalf of each of the defendants. The affirmation of Ian H. Newmark, M.D. is submitted on behalf of Dr. Alter; the affirmation of Richard W. Johnson, M.D. is submitted on behalf of SCSMC, and the affirmation of Howard Reiser, M.D. is submitted on behalf of Dr. Mayerson.
Based upon a review of the submitted evidence, including the affirmations submitted on behalf of the respective defendants, the moving defendants have each demonstrated that there is no merit to plaintiffs' claims against any of them. Accordingly, each of the moving defendants has established his/its prima facie entitlement to summary judgment as a matter of law.
As noted, plaintiffs do not oppose the instant summary judgment motions; rather, plaintiffs concede that "on the basis of the evidence developed during the discovery proceedings, plaintiff would be unable to establish liability" against Dr. Alter, Dr. Mayerson and SCSMC (Affirmations of Steven Siegel, Esq.,5, 6). Considering this concession, plaintiffs do not raise a triable issue of fact, thereby warranting summary judgment dismissal of the complaint as alleged against each of the moving defendants.
Each of the moving defendants' summary judgment motions is granted, and their names shall be deleted from the caption of this action, which is hereby amended accordingly.
Motion Sequences 006, 007 and 008 - The Cross-Motions
In each of the three cross-motions seeking the same relief, plaintiffs state that they are willing to discontinue the action against the defendant to whom the cross-motion is directed (Alter or Mayerson or SCSMC), provided that plaintiff's right is not prejudiced per the operation of General Obligation Law § 15-108; therefore, plaintiffs seek "to compel the co-defendants to affirmatively articulate, in an evidentiary form, whatever theory of liability or apportionment against [Alter or Mayerson or SCSMC] that they possess."
None of the named defendants in this action has made any cross-claims against the other, but each has asserted an Article 16 defense in their respective answers. Plaintiffs also maintain in each of the cross-motions that the remaining defendants should be precluded from asserting their Article 16 defenses asserted in their respective answers, and that the defense should be stricken.
None of the defendants moving for summary judgment herein has submitted any evidence supporting a claim against any of their codefendants, and none of the moving defendants opposes the summary judgment motions of their codefendants.The remaining defendant, Dr. Chernoff has not opposed the summary judgment motions of Alter, Mayerson or SCSMC; therefore, he, too, has not offered any evidence of liability against the moving defendants.
Plaintiffs' cross-motions are not directed to Dr. Chernoff; therefore, this Court will not make any determination as to Dr. Chernoff's Article 16 defense.
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Considering that this Court has granted summary judgment dismissal of the complaint as alleged against defendants Alter, Mayerson and SCSMC, which is a determination on the merits and the equivalent of a trial ( S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp. , 34 NY2d 338 [1974] ), it is established that there are no viable grounds for any relief against Dr. Alter, Dr. Mayerson or SCSMC. Accordingly, the relief sought by plaintiffs in the three cross-motions is denied as moot.
The foregoing constitutes the Decision and Order of this Court.