IN v. MAIMONIDES MEDICAL CENTER (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated September 8, 2020.  The order granted the motion of the defendants Maimonides Medical Center and Alan M. Derzie for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Maimonides Medical Center and Alan M. Derzie for summary judgment dismissing the complaint insofar as asserted against them is denied.

In April 2014, the plaintiff's decedent (hereinafter the decedent) allegedly died of an aortic dissection at the defendant Maimonides Medical Center (hereinafter the hospital) after being seen in the emergency department by the defendant Alan M. Derzie.  In November 2014, the plaintiff, individually and as administrator of the decedent's estate, commenced this action, inter alia, to recover damages for medical malpractice and wrongful death.  The hospital and Derzie (hereinafter together the defendants) moved for summary judgment dismissing the complaint insofar as asserted against them.  In an order dated September 8, 2020, the Supreme Court granted the defendants’ motion.  The plaintiff appeals.

“A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact with respect to at least one of the elements of a cause of action alleging medical malpractice:  (1) [that] the physician deviated or departed from accepted community standards of practice, or (2) that such a departure was a proximate cause of the plaintiff's injuries” (Russell v. Garafalo, 189 A.D.3d 1100, 1101, 136 N.Y.S.3d 317 [citation and internal quotation marks omitted];  see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176).  “[A] defendant's expert's affidavit or affirmation that merely recount[s] the treatment rendered and opine[s] in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice is insufficient to meet this burden” (Buzeska v. Crystal Run Healthcare Physicians, LLP, 234 A.D.3d 656, 658, 224 N.Y.S.3d 531 [internal quotation marks omitted]).

Here, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them.  The defendants submitted, inter alia, the affirmation of an expert, whose opinions regarding the defendants’ alleged failure to diagnose the plaintiff's aortic dissection after receipt of certain X-ray results and blood test results were conclusory and unsupported by the record (see Ross–Germain v. Millennium Med. Servs., P.C., 144 A.D.3d 658, 660, 40 N.Y.S.3d 478;  Yaegel v. Ciuffo, 95 A.D.3d 1110, 1112–1113, 944 N.Y.S.2d 601).  That expert's opinion regarding proximate cause was also conclusory and insufficient to meet the defendants’ burden as the parties moving for summary judgment (see Wei Lin v. Sang Kim, 168 A.D.3d 788, 788–789, 89 N.Y.S.3d 688).  Accordingly, the Supreme Court should have denied the defendants’ motion regardless of the sufficiency of the plaintiff's opposition 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).

In light of our determination, we need not reach the parties’ remaining contentions.

MILLER, J.P., CHRISTOPHER, LANDICINO and HOM, JJ., concur.