Opinion
No. 16339 Index No. 21831/17E No. 2021-03014
10-06-2022
Frank Vega, Plaintiff-Respondent-Appellant, v. Ira Kirschenbaum, M.D., Defendant, Bronx-Lebanon Hospital Center, Defendant-Appellant-Respondent.
Turken Heath & McCauley LLP, Armonk (Jason D. Turken of counsel), for appellant-respondent. Sanocki, Newman & Turret, LLP, New York (Joshua Fogel of counsel), for respondent-appellant.
Turken Heath & McCauley LLP, Armonk (Jason D. Turken of counsel), for appellant-respondent.
Sanocki, Newman & Turret, LLP, New York (Joshua Fogel of counsel), for respondent-appellant.
Before: Manzanet-Daniels, J.P., Mazzarelli, Moulton, Kennedy, Pitt, JJ.
Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered July 15, 2021, which, to the extent appealed from, denied in part defendant Bronx-Lebanon Hospital Center's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted in its entirety. The Clerk is directed to enter judgment dismissing the complaint.
The court denied defendant summary judgment on the ground that plaintiff's expert affidavit raised issues of fact as to whether defendant deviated from accepted standards of medical care in failing to prescribe physical therapy after a manipulation under anesthesia procedure so as to ensure proper range of motion. The court should not have considered this theory of liability, as it was improperly raised for the first time in opposition to defendant's summary judgment motion (see Biondi v Behrman, 149 A.D.3d 562, 563-564 [1st Dept 2017], lv dismissed and denied 30 N.Y.3d 1012 [2017]; Atkins v Beth Abraham Health Servs., 133 A.D.3d 491, 492 [1st Dept 2015]). Furthermore, defendant was not put on notice of such new theory of recovery because it was not pleaded in the complaint and bill of particulars (see Ruchames v New York & Presbyt. Hosp., 176 A.D.3d 602, 603 [1st Dept 2019]; Ostrov v Rozbruch, 91 A.D.3d 147, 154 [1st Dept 2012]), or raised as an issue during the deposition of the treating physician (cf. Valenti v Camins, 95 A.D.3d 519, 522 [1st Dept 2012]).
In view of the foregoing, we need not reach the issue of whether the expert opinion was sufficient to defeat summary judgment. Because the court found plaintiff's opposition papers insufficient aside from this new theory of recovery, defendant's motion should have been granted. THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.