FARGNOLI v. WARFEL (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action arising from plaintiff's allegations that, among other things, defendants were negligent in failing to timely diagnose his breast cancer, defendants-appellants (defendants) appeal from an order that, inter alia, denied in part the motion of defendants for summary judgment dismissing the complaint against them. We affirm.

On a motion seeking summary judgment dismissing a medical malpractice cause of action, “ ‘a defendant has the burden of establishing, prima facie, that he or she did not deviate from the good and accepted standard of ․ care, or that any such deviation was not a proximate cause of the plaintiff's injuries’ ” (Culver v. Simko, 170 A.D.3d 1599, 1600, 94 N.Y.S.3d 493 [4th Dept. 2019]; see Kubera v. Bartholomew, 167 A.D.3d 1477, 1479, 89 N.Y.S.3d 803 [4th Dept. 2018]). Here, as defendants essentially concede, their submissions in support of the motion with respect to the medical malpractice causes of action addressed only deviation, inasmuch as their expert affirmation mentioned causation only in a fleeting and conclusory manner (see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 545, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002]; Occhino v. Fan, 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017]). Thus, because defendants did not meet their initial burden with respect to causation, we conclude that plaintiff was not required to address that element in his opposition to the motion (see Bubar v. Brodman, 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019]; Bhim v. Dourmashkin, 123 A.D.3d 862, 864, 999 N.Y.S.2d 471 [2d Dept. 2014]).

With respect to deviation from the standard of care, however, we conclude that defendants met their initial burden through the submission of the detailed expert affirmation of an internal medicine physician. Defendants' expert opined, in a nonconclusory manner, that defendants' treatment of plaintiff in the two years leading up to his cancer diagnosis was consistent with the accepted standard of care and that defendants took timely action in responding to plaintiff's changing condition during that time (see Nevarez v. University of Rochester, 173 A.D.3d 1640, 1641, 101 N.Y.S.3d 789 [4th Dept. 2019]; Boland v. Imboden, 163 A.D.3d 1408, 1409, 80 N.Y.S.3d 604 [4th Dept. 2018], lv denied 32 N.Y.3d 912, 2019 WL 149756 [2019]; Chillis v. Brundin, 150 A.D.3d 1649, 1650, 54 N.Y.S.3d 479 [4th Dept. 2017]).

We further conclude that plaintiff raised an issue of fact with respect to deviation in opposition to defendants' motion. Where, as here, a plaintiff's detailed expert affirmation “squarely opposes” the affirmation of a defendant's expert, the result is “a classic battle of the experts that is properly left to a jury for resolution” (Blendowski v. Wiese [Appeal No. 2], 158 A.D.3d 1284, 1286, 71 N.Y.S.3d 274 [4th Dept. 2018] [internal quotation marks omitted]; see Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018]). Plaintiff's expert affirmation is sufficient to raise an issue of fact, inasmuch as we conclude that it does not “misstate[ ] the facts in the record” and it is not “ ‘vague, conclusory, [or] speculative’ ” (Occhino, 151 A.D.3d at 1871, 57 N.Y.S.3d 325; see Diaz, 99 N.Y.2d at 544, 754 N.Y.S.2d 195, 784 N.E.2d 68; cf. Bubar, 177 A.D.3d at 1362, 111 N.Y.S.3d 483).