D. S. v. Poliseno

189 A.D.3d 1102

133 N.Y.S.3d 831 (Mem)

D. S., etc., et al., respondents,

v.Mariano POLISENO, etc., et al., appellants, et al., defendants.

2017-00397

2017-09339

Index No. 101221/14

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

Argued—September 22, 2020

December 9, 2020

Vaslas Lepowsky Hauss & Danke LLP, Staten Island, N.Y. (Paul J. Danke, Jr., of counsel), for appellant Marino Poliseno, incorrectly identified by the plaintiff as Mariano Poliseno.

Vigorito, Barker, Porter & Patterson, LLP, Valhalla, N.Y. (Leilani Rodriguez of counsel), for appellants Nisha Lakhi, Natalie Jouve, Rosemarie Seaman, and Richmond University Medical Center.

Krentsel & Guzman, LLP (Michael H. Zhu, Esq., P.C., New York, NY, of counsel), for respondents.

CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, (1) the defendant Marino Poliseno, incorrectly identified by the plaintiff as Mariano Poliseno, appeals, and the defendants Nisha Lakhi, Natalie Jouve, Rosemarie Seaman, and Richmond University Medical Center separately appeal, from an order of the Supreme Court, Richmond County (Philip G. Minardo, J.), dated November 7, 2016, and (2) the defendant Marino Poliseno appeals from an order of the same court dated June 19, 2017. The order dated November 7, 2016, insofar as appealed from, denied the motion of the defendant Marino Poliseno and the separate motion of the defendants Nisha Lakhi, Natalie Jouve, Rosemarie Seaman, and Richmond University Medical Center, for summary judgment dismissing the complaint insofar as asserted against each of them. The order dated June 19, 2017, inter alia, denied the motion of the defendant Marino Poliseno for leave to renew his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the appeal from the order dated June 19, 2017, is dismissed as abandoned; and it is further,

ORDERED that the order dated November 7, 2016, is affirmed insofar as appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs payable by the appellants appearing separately and filing separate briefs.

The plaintiffs, Mary Walker and her infant, commenced this medical malpractice action against, among others, the defendant Marino Poliseno and the defendants Richmond University Medical Center, Nisha Lakhi, Natalie Jouve, and Rosemarie Seaman (hereinafter collectively the Medical Center defendants). The plaintiffs alleged, inter alia, that, as a result of the negligent acts of Poliseno and the Medical Center defendants, the infant suffered neurological damage and a clavicle fracture during his birth. Specifically, among other things, the plaintiffs allege that Poliseno and the Medical Center defendants failed to anticipate and/or recognize the large size of the fetus in utero and failed to recommend that a cesarean section be performed.

Poliseno and the Medical Center defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. By order dated November 7, 2016, the Supreme Court denied their motions. Thereafter, Poliseno moved for leave to renew. By order dated June 19, 2017, the Supreme Court, among other things, denied his motion.

"A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff's injuries" ( Mackauer v. Parikh, 148 A.D.3d 873, 875–876, 49 N.Y.S.3d 488 ; see Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars" ( Mackauer v. Parikh, 148 A.D.3d at 876, 49 N.Y.S.3d 488 ; see Schwartzberg v. Huntington Hosp., 163 A.D.3d 736, 737, 81 N.Y.S.3d 118 ). "Once this showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden" ( Mackauer v. Parikh, ...