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Robert VALENTI, appellant, v. John J. GADOMSKI, etc., et al., respondents.
DECISION & ORDER
In an action to recover damages for medical malpractice, the plaintiff appeals from a corrected judgment of the Supreme Court, Richmond County (Philip G. Minardo, J.), entered May 16, 2017. The corrected judgment, insofar as appealed from, in effect, upon an order of the same court (Charles M. Troia, J.) dated December 28, 2015, denying the motion of the defendant John J. Gadomski for summary judgment dismissing the amended complaint insofar as asserted against him, and upon a jury verdict in favor of the defendants John J. Gadomski, Shimon Oami, Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C. McCormack, M.D., P.C., and against the plaintiff on the issue of liability, is in favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants.
ORDERED that on the Court's own motion, the notice of appeal from a judgment entered December 21, 2016, is deemed to be a premature notice of appeal from the corrected judgment (see CPLR 5520[c]); and it is further,
ORDERED that the corrected judgment is reversed insofar as appealed from, on the law and in the exercise of discretion, the amended complaint insofar as asserted against the defendants John J. Gadomski, Shimon Oami, Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C. McCormack, M.D., P.C., is reinstated, and the matter is remitted to the Supreme Court, Richmond County, for a new trial before a different Justice; and it is further,
ORDERED that one bill of costs is awarded to the plaintiff, payable by the respondents appearing separately and filing separate briefs.
In March 2012, the plaintiff commenced this action to recover damages for medical malpractice against the defendants John J. Gadomski, Patricia C. McCormack, McCormack's medical practices, and the defendant Shimon Oami (hereinafter collectively the defendants), among others, alleging that the defendants deviated from accepted medical practice by failing to properly and timely diagnose skin cancer on his left foot, causing him to undergo amputation of the fifth toe of that foot.
As is relevant to this appeal, Gadomski moved for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against him. In an order dated December 28, 2015, the Supreme Court denied Gadomski's motion. Gadomski appealed (see Valenti v. Gadomski, 203 A.D.3d 782, 160 N.Y.S.3d 656 [Appellate Division Docket No. 2016–00626; decided herewith]).
Thereafter, following a jury trial, the jury returned a verdict in favor of the defendants and against the plaintiff on the issue of liability, finding that none of the defendants deviated from accepted medical practice during their treatment of the plaintiff's skin condition. The Supreme Court then entered a corrected judgment, inter alia, in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against them. The plaintiff appeals.
As an initial matter, the Supreme Court properly denied Gadomsky's motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against him. “In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries” (Maestri v. Pasha, 198 A.D.3d 632, 633–634, 153 N.Y.S.3d 615 [internal quotation marks omitted]; see N.S. v. Freedman, 198 A.D.3d 702, 703, 154 N.Y.S.3d 335). “ ‘A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries’ ” (Maestri v. Pasha, 198 A.D.3d at 634, 153 N.Y.S.3d 615, quoting M.C. v. Huntington Hosp., 175 A.D.3d 578, 579, 106 N.Y.S.3d 382). “Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician” (N.S. v. Freedman, 198 A.D.3d at 703, 154 N.Y.S.3d 335 [internal quotation marks omitted]).
Although Gadomski established his prima facie entitlement to judgment as a matter of law by submitting, among other things, the plaintiff's medical records and the affirmations of his two medical experts, a board certified dermatologist and a board certified dermatologist and dermatopathologist, who both opined that the care and treatment Gadomski rendered to the plaintiff did not deviate from the accepted standards of medical care and that such treatment was not a proximate cause of the plaintiff's alleged injuries (see N.S. v. Freedman, 198 A.D.3d at 703, 154 N.Y.S.3d 335; Maestri v. Pasha, 198 A.D.3d at 634, 153 N.Y.S.3d 615), in opposition, the plaintiff raised triable issues of fact. The plaintiff submitted an affidavit of his medical expert, a board certified pathologist, which raised triable issues of fact as to whether Gadomski departed from good and accepted care and whether such alleged departures were a proximate cause of the plaintiff's injuries (see N.S. v. Freedman, 198 A.D.3d at 703, 154 N.Y.S.3d 335; Maestri v. Pasha, 198 A.D.3d at 634, 153 N.Y.S.3d 615).
With respect to the judgment, after the jury verdict, in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against them, although the issue is unpreserved for appellate review, the verdict must be set aside and the matter remitted for a new trial in the interest of justice since improper comments by the Supreme Court and opposing counsel deprived the plaintiff of a fair trial and may have unduly influenced the jury (see CPLR 4404(a); see e.g. Ioffe v. Seruya, 134 A.D.3d 993, 995–996, 21 N.Y.S.3d 712; Ortiz v. Jaramillo, 84 A.D.3d 766, 766, 921 N.Y.S.2d 870). “ ‘[L]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court’ ” (Ioffe v. Seruya, 134 A.D.3d at 995, 21 N.Y.S.3d 712, quoting Rodriguez v. City of New York, 67 A.D.3d 884, 886, 889 N.Y.S.2d 220). A trial court “ ‘should at all times maintain an impartial attitude and exercise a high degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effect justice’ ” (Ioffe v. Seruya, 134 A.D.3d at 996, 21 N.Y.S.3d 712, quoting DeCrescenzo v. Gonzalez, 46 A.D.3d 607, 608–609, 847 N.Y.S.2d 236).
Here, the Supreme Court's repeated prejudicial comments and interjections prejudiced the plaintiff. For example, the court barred the plaintiff's counsel from referring to the growth at issue on the plaintiff's left foot as a tumor, ordered that the growth be referred to as a wart, and continued to refer to it as a wart through the trial. Thus, the court, in effect, determined a pivotal issue of fact that was properly for the jury to resolve (see e.g. Butler v. New York City Hous. Auth., 26 A.D.3d 352, 353, 810 N.Y.S.2d 209). In addition, the court opined multiple times before the jury that there was no proof that the plaintiff was misdiagnosed by the defendants, despite testimony by the plaintiff's expert to the contrary which had already been elicited. Although the court later directed the jury to disregard its remarks, the instruction was not sufficient to cure the prejudice caused by its improvident comments and interjections (see Cohn v. Meyers, 125 A.D.2d 524, 527–529, 509 N.Y.S.2d 603; see e.g. Mercedes v. Amusements of Am., 160 A.D.2d 630, 631–632, 559 N.Y.S.2d 252).
The comments of Oami's counsel also prejudiced the plaintiff. Oami's counsel made multiple improper and inflammatory comments about the relationship between counsel for the plaintiff and the plaintiff's expert pathologist during the cross examination of that expert and during his summation to the jury on behalf of Oami. Contrary to the Supreme Court's determination, these remarks were so inflammatory and unduly prejudicial as to have deprived the plaintiff of a fair trial (see Nieves v. Clove Lakes Health Care & Rehabilitation, Inc., 179 A.D.3d 938, 940–941, 118 N.Y.S.3d 113; Rodriguez v. City of New York, 67 A.D.3d at 885–886, 889 N.Y.S.2d 220).
The record reflects that the cumulative effect of the Supreme Court's comments and interjections, as well as those of counsel for Oami, deprived the plaintiff of a fair trial (see Ioffe v. Seruya, 134 A.D.3d at 996, 21 N.Y.S.3d 712; Rodriguez v. City of New York, 67 A.D.3d at 886–887, 889 N.Y.S.2d 220). Accordingly, under the circumstances of this case, a new trial is warranted, and the matter is remitted to the Supreme Court, Richmond County, for a new trial before a different Justice (see Troyano v. Burris, 196 A.D.3d 525, 526, 147 N.Y.S.3d 419).
In light of our determination, we need not reach the plaintiff's remaining contentions.
DUFFY, J.P., IANNACCI, MALTESE and FORD, JJ., concur.
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Docket No: 2017–00682
Decided: March 02, 2022
Court: Supreme Court, Appellate Division, Second Department, New York.
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