Russell v. Garafalo

189 A.D.3d 1100

136 N.Y.S.3d 317

Nancy E. RUSSELL, etc., respondent,

v.Anthony J. GARAFALO, etc., et al., appellants.

2018-05043

Index No. 601810/15

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

Argued—October 20, 2020

December 9, 2020

Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y. (Christopher Simone and Nicholas Tam of counsel), for appellant Anthony J. Garafalo.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson of counsel), for appellants South Bay Cardiovascular Associates, P.C., Eastern Cardiology Associates, P.C., and St. Francis Hospital.

Sullivan Papain Block McGrath & Cannavo P.C., Garden City, N.Y. (Stephen C. Glasser of counsel), for respondent.

SHERI S. ROMAN, J.P., COLLEEN D. DUFFY, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant Anthony J. Garafalo and the defendants South Bay Cardiovascular Associates, P.C., Eastern Cardiology Associates, P.C., and St. Francis Hospital separately appeal from an order of the Supreme Court, Suffolk County (John H. Rouse, J.), dated March 29, 2018. The order, insofar as appealed from, denied the defendants' respective motions for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs, payable by the appellants appearing separately and filing separate briefs.

In August 2012, the decedent was referred to the defendant Anthony J. Garafalo, a cardiologist employed by the defendants South Bay Cardiovascular Associates, P.C., Eastern Cardiology Associates, P.C., and St. Francis Hospital (hereinafter collectively the South Bay defendants), after having experienced, among other things, lightheadedness and shortness of breath. Garafalo performed a complete physical and an EKG during that first visit. He referred the decedent for an echocardiogram on September 5, 2012, and, on October 9, 2012, he also performed a stress test. The echocardiogram revealed a slightly dilated left ventricle, a mildly dilated ascending aorta measuring 4.4 cm, and aortic sinuses of valsalva mildly dilated at 4.2 cm. Garafolo advised the decedent to follow up in a year. The decedent did not return. In September 2014, the decedent collapsed and died as a result of a ruptured ascending aortic aneurysm.

The plaintiff, the decedent's wife, Nancy E. Russell, commenced this action, inter alia, to recover damages for medical malpractice. Garafalo and the South Bay defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied their motions. Garafalo and the South Bay defendants separately appeal.

"A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ) 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) that such a departure was a proximate cause of the plaintiff's injuries" ( Rosenthal v. Alexander, 180 A.D.3d 826, 827, 118 N.Y.S.3d 658 ; see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). "Where a defendant makes a prima facie showing on both elements, ‘the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact as to both the departure element and the causation element’ " ( Gilmore v. Mihail, 174 A.D.3d 686, 687, 105 N.Y.S.3d 504, quoting Stukas v. Streiter, 83 A.D.3d at 25, 918 N.Y.S.2d 176 ). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" ( ...