MARTI v. Maria Pia DeBlasio, M.D., Defendant–Respondent. (2019)

Order, Supreme Court, Bronx County (Lewis J. Lubell, J.), entered on or about November 27, 2018, which granted plaintiffs' motion for renewal and reargument and, upon renewal and reargument, adhered to the prior determination granting defendant Maria Pia DeBlasio, M.D.'s motion for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.  Appeal from order, same court and Justice, entered on or about May 7, 2018, unanimously dismissed, without costs, as academic.

It is undisputed that defendant met her prima facie burden of establishing the absence of a departure from good and accepted medical practice, or that any such departure was not a proximate cause of the decedent's injuries (see Anyie B. v. Bronx Lebanon Hosp., 128 A.D.3d 1, 3, 5 N.Y.S.3d 92 [1st Dept. 2015] ).  The affidavit by plaintiffs' expert was insufficient to raise any issues of fact, because it improperly raised a new theory of liability for the first time in opposition to summary judgment (Biondi v. Behrman, 149 A.D.3d 562, 563–564, 53 N.Y.S.3d 265 [1st Dept 2017], lv dismissed in part, denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017] ).  Contrary to plaintiffs' contention, this affidavit did not merely add additional detail but rather offered a distinct and conflicting theory—that defendant was negligent in failing to diagnose and treat the decedent's congestive heart failure as opposed to his atrial fibrillation or flutter.

We need not decide whether it would have been appropriate to grant leave to amend the complaint or bill of particulars, as plaintiffs never moved for such relief.

The fact that oral argument was held before a different Justice than the Justice who ultimately decided the motion for summary judgment is not a proper basis for vacating the order granting summary judgment.  Although Judiciary Law § 21 provides that a Supreme Court Justice “shall not decide or take part in the decision of a question, which was argued orally in the court, when he was not present and sitting therein as a judge,” reversal is not warranted on this ground, because the Justice who granted the motion decided a purely legal question (People v. Hampton, 21 N.Y.3d 277, 286, 970 N.Y.S.2d 716, 992 N.E.2d 1059 [2013] ).

Plaintiffs argue that they were prejudiced because certain statements made by the court at oral argument led them to believe that a motion for leave to amend was not necessary.  This argument is unavailing.  To the extent counsel relied on his impressions of the court's leanings, which were never incorporated into a binding order, he did so at his own peril.

While plaintiffs may have been prejudiced to the extent they made arguments at oral argument that they did not make in their opposition brief, any such prejudice has been mitigated by the fact that these arguments were raised and considered in connection with the motion to reargue or renew.