BADESCU v. LEWIS (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Suffolk County (James F. Quinn, J.), dated June 6, 2023.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is denied.

The plaintiff, individually and as mother and natural guardian of B. N., commenced this action against the defendants, alleging, inter alia, medical malpractice with respect to treatment B.N. received from the defendant Ronald Lewis in January 2017.  As amplified by the bill of particulars, the plaintiff alleged, among other things, that Lewis failed to diagnose an aneurysmal bone cyst or bone lesion in B. N.'s left fibula.  The bone cyst went untreated for several months, and in September 2017, B.N. underwent intensive surgery at Memorial Sloan Kettering to remove it.  The plaintiff alleged that as a result of the defendants' medical malpractice, B.N. has sustained permanent injuries.  Following the completion of discovery, the defendants moved for summary judgment dismissing the complaint.  In an order dated June 6, 2023, the Supreme Court granted the motion.  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” (Ciceron v. Gulmatico, 220 A.D.3d 732, 734, 197 N.Y.S.3d 556 [internal quotation marks omitted];  see Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d 795, 796, 148 N.Y.S.3d 234).  “A defendant moving for summary judgment in a medical malpractice case must demonstrate the absence of any material issues of fact with respect to at least one of these elements” (DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 [citation and internal quotation marks omitted];  see Glassman v. Caremount Med., P.C., 226 A.D.3d 878, 879, 209 N.Y.S.3d 527).  “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars” (Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d at 796, 148 N.Y.S.3d 234;  see Mattocks v. Ellant, 231 A.D.3d 813, 815, 219 N.Y.S.3d 715).  “Similarly, general allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment” (Bendel v. Rajpal, 101 A.D.3d 662, 663, 955 N.Y.S.2d 187 [alterations and internal quotation marks omitted];  see Wei Lin v. Sang Kim, 168 A.D.3d 788, 788, 89 N.Y.S.3d 688).  A defendant's failure to satisfy this prima facie burden requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Ojeda v. Barabe, 202 A.D.3d 808, 810, 158 N.Y.S.3d 870).

Here, the defendants' submissions were insufficient to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint.  The opinion of the defendants' expert with respect to the absence of a departure from the accepted standard of care failed, inter alia, to address the evidence in the record that a bone lesion was visible on the X-ray reviewed by Lewis in January 2017 (see Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d at 797, 148 N.Y.S.3d 234;  Wei Lin v. Sang Kim, 168 A.D.3d at 788–789, 89 N.Y.S.3d 688).  Relatedly, the expert also failed to specifically address the plaintiff's allegation that Lewis failed to diagnose a bone lesion during the January 2017 visit (see McCarthy v. Ashikari, 206 A.D.3d 718, 721, 169 N.Y.S.3d 352;  Huichun Feng v. Accord Physicians, PLLC, 194 A.D.3d at 797, 148 N.Y.S.3d 234).

Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint, without regard to the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The plaintiff's remaining contentions need not be reached in light of our determination.

CHAMBERS, J.P., WOOTEN, WAN and LOVE, JJ., concur.