SWIATOCHA v. KOENIGSDORF (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated February 27, 2024.  The order, insofar as appealed from, denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against the defendants Eric S. Koenigsdorf, Matthew R. Austen, and Peconic Bay Medical Center.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On July 5, 2019, the plaintiff was transported by ambulance to the emergency department of the defendant Peconic Bay Medical Center (hereinafter PBMC), where she was treated by the defendants Eric S. Koenigsdorf and Matthew R. Austen.  The plaintiff reported that she dropped a porcelain vase on her right foot, resulting in a cut on the top of her foot approximately six inches from her big toe.  She further reported that her right big toe was drooping and that she was unable to move it.  Koenigsdorf performed an X-ray on the plaintiff's right foot, sutured the wound, and instructed the plaintiff to follow up with an orthopedic specialist within one to three days.  Five days later, the plaintiff presented to James Moore, an orthopedic surgeon, who discussed treatment options.  According to the plaintiff, Moore advised her that the extensor hallucis longus (hereinafter EHL) tendon of her right foot was severed and that it was too late to surgically repair it because it should have been addressed “immediately.”  On January 28, 2020, approximately six months later, the plaintiff presented to a different orthopedic surgeon, who diagnosed her with an EHL tendon rupture in her right foot and informed her that she was “well past the point” where the rupture could be surgically repaired.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against Koenigsdorf, Austen, and PBMC (hereinafter collectively the PBMC defendants), and another defendant.  The defendants moved, among other things, for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against the PBMC defendants.  By order dated February 27, 2024, the Supreme Court, inter alia, denied that branch of the defendants’ motion.

“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) whether the physician deviated or departed from accepted community standards of practice, or (2) [whether] such a departure was a proximate cause of the plaintiff's injuries” (Rani v. Chaudhry, 237 A.D.3d 866, 867, 232 N.Y.S.3d 198 [internal quotation marks omitted];  see Danziger v. Mayer, 236 A.D.3d 755, 758, 229 N.Y.S.3d 556).  “Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden” (Rani v. Chaudhry, 237 A.D.3d at 867, 232 N.Y.S.3d 198 [internal quotation marks omitted];  see Delia v. Wieder, 236 A.D.3d 857, 858, 228 N.Y.S.3d 689;  Danziger v. Mayer, 236 A.D.3d at 758, 229 N.Y.S.3d 556).  “Summary judgment is generally not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, that are neither conclusory nor speculative, and are otherwise supported by the record” (Danziger v. Mayer, 236 A.D.3d at 758, 229 N.Y.S.3d 556 [internal quotation marks omitted];  see Rani v. Chaudhry, 237 A.D.3d at 868, 232 N.Y.S.3d 198).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against the PBMC defendants.  By submitting, among other things, an expert affirmation, the defendants demonstrated, prima facie, that the treatment provided by the PBMC defendants did not depart from accepted medical practice and, in any event, that this treatment did not proximately cause the plaintiff's injuries (see Delia v. Wieder, 236 A.D.3d at 858, 228 N.Y.S.3d 689;  Armond v. Strangio, 227 A.D.3d 758, 759, 210 N.Y.S.3d 491).

In opposition, however, the plaintiff's expert affirmation raised triable issues of fact as to whether the PBMC defendants departed from accepted medical practice and whether their alleged departures were a proximate cause of the plaintiff's injuries.  Where, as here, experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution (see Delia v. Wieder, 236 A.D.3d at 859, 228 N.Y.S.3d 689).

Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against the PBMC defendants.

IANNACCI, J.P., MILLER, DOWLING and LOVE, JJ., concur.