170 A.D.3d 925

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

Kyle WODZENSKI, Respondent,



North Fork Orthopedic and Sports Medicine, PLLC, et al., Appellants.

2016–07785(Index No. 22738/10)

Argued—December 10, 2018March 13, 2019


Background: Patient who underwent unsuccessful surgery to treat crushed fingers brought medical malpractice action against doctors and organization for which they worked. The Supreme Court, Suffolk County, Arthur G. Pitts, J., denied defendants' motion for summary judgment, and they appealed.

Holding: The Supreme Court, Appellate Division, held that conclusory statement by medical expert was insufficient to satisfy defendants' prima facie burden of demonstrating that there had been no departure from good and accepted medical practice.


Attorneys and Law Firms

**81 Perry, Van Etten, Rozanski & Primavera, LLP, Melville, N.Y. (Henry M. Primavera of counsel), for appellants.

The Berkman Law Office, LLC, Brooklyn, N.Y. (David S. Steigbigel and Norman Steiner of counsel), for respondent.




*925 In an action, inter alia, to recover damages for medical malpractice, the defendants North Fork Orthopedic and Sports Medicine, PLLC, Fred Moore Carter II, and J. Rongo appeal *926 from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated June 16, 2016. The order, insofar as appealed from, denied those defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff was injured on August 31, 2009, when a log fell on his left hand, crushing his index finger and the tip of his middle finger. At the defendant Eastern Long Island Hospital (hereinafter the hospital), the defendant Fred Moore Carter II operated on the plaintiff's fingers. Following the surgery, the plaintiff's left arm was put in a splint and bandaged from the mid-forearm to the tip of the fingers. The plaintiff stayed in the hospital overnight and was discharged the following morning. On September 3, 2009, the plaintiff went to Carter's office for a check-up, where he was seen by the defendant J. Rongo, Carter's physician's assistant. Rongo examined the plaintiff's arm and hand without removing the dressing. The plaintiff returned to Carter's office on September 11, 2009. Carter removed the dressing, and told the plaintiff that his index finger “had died” and that it would need to be amputated. **82 The plaintiff's index finger was amputated one week later.

The plaintiff commenced this action against Carter, Rongo, their employer, the defendant North Fork Orthopedic and Sports Medicine, PLLC (hereinafter collectively the North Fork defendants), and the hospital. The North Fork defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court denied the motion, and the North Fork defendants appeal.

12To prevail on a motion for summary judgment in a medical malpractice action, a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that any departure was not a proximate cause of the patient's injuries (see Kelly v. Rosca, 164 A.D.3d 888, 891, 83 N.Y.S.3d 317Matos v. Khan, 119 A.D.3d 909, 910, 991 N.Y.S.2d 83Makinen v. Torelli, 106 A.D.3d 782, 783–784, 965 N.Y.S.2d 529LeMaire v. Kuncham, 102 A.D.3d 659, 957 N.Y.S.2d 732). Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact with respect to the issues on which the defendant met the prima facie burden (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572Stukas v. Streiter, 83 A.D.3d 18, 24–25, 918 N.Y.S.2d 176).

3Here, the North Fork defendants failed to establish, prima facie, that they did not depart from good and accepted standards *927 of medical care, or that any such departure was not a proximate cause of the plaintiff's injuries. The North Fork defendants' expert merely recounted the treatment rendered and opined in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice (see Kelly v. Rosca, 164 A.D.3d at 891, 83 N.Y.S.3d 317Barlev v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d 784, 995 N.Y.S.2d 514Yaegel v. Ciuffo, 95 A.D.3d 1110, 1112, 944 N.Y.S.2d 601Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105Couch v. County of Suffolk, 296 A.D.2d 194, 198, 746 N.Y.S.2d 187; cf. Menzel v. Plotnick, 202 A.D.2d 558, 559, 610 N.Y.S.2d 50). In light of this determination, it is unnecessary to review the sufficiency of the plaintiff's opposition (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).

Accordingly, we agree with the Supreme Court's determination to deny the North Fork defendants' motion for summary judgment dismissing the complaint insofar as asserted against them.