Faicco v. Golub

2012 N.Y. Slip Op. 00485

91 A.D.3d 817

938 N.Y.S.2d 105

Ava FAICCO, etc., et al., appellants,

v.Stephen GOLUB, etc., et al., respondents, et al., defendants.

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

Jan. 24, 2012.

Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), for appellants.

Geisler & Gabriele LLP, Garden City, N.Y. (Lori A. Marano and Jody A. Shelmidine of counsel), for respondents.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County (Spinner, J.), dated December 14, 2010, as granted that branch of the motion of the defendants Stephen Golub, Philip J. Makowski, and Port Jefferson Obstetrics & Gynecology, P.C., which was for summary judgment dismissing the complaint insofar as asserted against the defendants Stephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., and (2) so much of a judgment of the same court entered January 4, 2011, as, upon the order, is in favor of the defendants Stephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., and against them dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is reversed insofar as appealed from, on the law, that branch of the motion of the defendants Stephen Golub, Philip J. Makowski, and Port Jefferson Obstetrics & Gynecology, P.C., which was for summary judgment dismissing the complaint insofar as asserted against the defendants Stephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., is denied, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).

“ ‘The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury’ ” ( Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674; see Flaherty v. Fromberg, 46 A.D.3d 743, 745, 849N.Y.S.2d 278). “Thus, ‘[o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” ( Roca v. Perel, 51 A.D.3d at 758–759, 859 N.Y.S.2d 203, quoting Chance v. Felder, 33 A.D.3d 645, 645, 823 N.Y.S.2d 172; see Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176).

Here, viewing the evidence in the light most favorable to the plaintiffs ( see e.g. Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 895, 883 N.Y.S.2d 53), we conclude that the defendants Stephen Golub, Philip J. Makowski, and Port Jefferson Obstetrics & Gynecology, P.C. (hereinafter collectively the movants), failed to establish, prima facie, that the defendants Stephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., were entitled to summary...