Andrea Iodice, respondent, v. AnnaMaria Giordano, etc., defendant, Mitchell Greenbaum, etc., appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Andrea Iodice, respondent, v. AnnaMaria Giordano, etc., defendant, Mitchell Greenbaum, etc., appellant.

2016–11280 (Index No. 8868/14)

Decided: March 20, 2019

ALAN D. SCHEINKMAN, P.J. REINALDO E. RIVERA SYLVIA O. HINDS–RADIX BETSY BARROS, JJ. Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Michele R. Levin of counsel), for appellant.

Argued—December 6, 2018

DECISION & ORDER

In an action, inter alia, to recover damages for podiatric malpractice, the defendant Mitchell Greenbaum appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered September 26, 2016.  The order denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the defendant Mitchell Greenbaum's motion for summary judgment dismissing the complaint insofar as asserted against him is granted.

The plaintiff was diagnosed with a hammertoe of the second toe on her left foot and a corn on the same toe by the defendant podiatrists, Mitchell Greenbaum (hereinafter the defendant) and Annamaria Giordano.  The defendant testified at his deposition that, during the plaintiff's one visit with him, which was on May 13, 2013, the defendant performed an aseptic debridement of the plaintiff's corn to alleviate the pain, but did not prescribe any medications.

The plaintiff commenced this action alleging podiatric malpractice against the defendant and Giordano.  The defendant moved for summary judgment dismissing the complaint insofar as asserted against him.  The Supreme Court denied the motion, and the defendant appeals.

“The requisite elements of proof in a medical malpractice and podiatric malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage” (Paone v. Lattarulo, 123 AD3d 683, 683;  see Arocho v. D. Kruger, P.A., 110 AD3d 749, 750, Wilkins v. Khoury, 72 AD3d 1067, 1067).  Here, the defendant established his prima facie entitlement to judgment as a matter of law by submitting an expert affirmation indicating that the treatment and care given to the plaintiff by the defendant on May 13, 2013, did not deviate from accepted community standards of practice, that the plaintiff's infection, which occurred more than four months after that visit, was too remote in time to have been proximately caused by the defendant's treatment, and that the defendant had the plaintiff's informed consent for the procedure.

In opposition, the plaintiff submitted, inter alia, an affirmation of her expert, who opined that the defendant did not follow the good and accepted podiatric standard of care because although the defendant tested the plaintiff's foot pulse and found it to be low, the defendant did not refer the plaintiff to a vascular surgeon.  We agree with the defendant that this assertion was not readily discernable from the allegations in the plaintiff's bill of particulars, and, thus, was a new theory of liability that should not have been considered by the Supreme Court (see Campos v. Beth Israel Med. Ctr., 80 AD3d 642, 642;  cf.  Schwartzberg v. Huntington Hosp., 163 AD3d 736, 738;  Shanoff v. Golyan, 139 AD3d 932, 934).

Accordingly, the Supreme Court should have granted the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him.

SCHEINKMAN, P.J., RIVERA, HINDS–RADIX and BARROS, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court