Wiater v. Lewis

2021 NY Slip Op 04783

Shaya Wiater, et al., appellants, v. Blair Lewis, etc., et al., defendants, Elliot Riegelhaupt, etc., respondent.

Index No. 502774/16

Supreme Court of New York, Second Department

August 25, 2021

Victoria Wickman (Arnold E. DiJoseph, P.C., New York, NY [Arnold E. DiJoseph III], of counsel), for appellants.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, NY (Steven C. Mandell of counsel), for respondent.

HECTOR D. LASALLE, P.J., MARK C. DILLON, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Bernard J. Graham, J.), dated August 9, 2018. The order granted the motion of the defendant Elliot Riegelhaupt for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Elliot Riegelhaupt for summary judgment dismissing the complaint insofar as asserted against him is denied.

The plaintiffs commenced this action, inter alia, to recover damages for medical malpractice, alleging that the defendants' departures from good and accepted medical practice delayed the diagnosis of ulcerative colitis in the plaintiff Shaya Wiater (hereinafter the injured plaintiff) resulting in him sustaining a perforated colon and requiring a permanent ileostomy. The defendant Elliot Riegelhaupt, the injured plaintiff's primary care physician, moved for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court granted the motion, and the plaintiffs appeal.

On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries (see Roca v Perel, 51 A.D.3d 757, 758). In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045). If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324; Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 171 A.D.3d 1234, 1235; Stukas v Streiter, 83 A.D.3d 18, 30).

"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Feinberg v Feit, 23 A.D.3d 517 519). On a motion for summary judgment, the party opposing the motion is entitled to every favorable inference that may be drawn from the pleadings and affidavits submitted by the parties (see Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 A.D.3d 1426; Nicklas v Tedlen Realty Corp., 305 A.D.2d 385). "Conflicting expert opinions raise credibility issues which are to be resolved by the factfinder" (Elmes v Yelon, 140 A.D.3d 1009, 1011).

Here Riegelhaupt satisfied his initial burden of establishing, prima facie,...