George v Plotnitskiy

George v Plotnitskiy 2023 NY Slip Op 06355 Decided on December 13, 2023 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 13, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
HECTOR D. LASALLE, P.J.
ROBERT J. MILLER
LARA J. GENOVESI
LAURENCE L. LOVE, JJ.
2021-00285
(Index No. 704360/19)

[*1]Maria George, etc., et al., respondents,

v

Mikhail Plotnitskiy, etc., appellant, et al., defendant.

Voute, Lohrfink, McAndrew, Meisner & Roberts, LLP, White Plains, NY (Anna R. Schwartz of counsel), for appellant.

Landers & Cernigliaro, P.C., Carle Place, NY (Stanley A. Landers of counsel), for respondents.

DECISION & ORDER

In an action to recover damages for medical malpractice, the defendant Mikhail Plotnitskiy appeals from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered December 9, 2020. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

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

The plaintiffs commenced this action against, among others, the defendant Mikhail Plotnitskiy (hereinafter the defendant), alleging that the defendant committed medical malpractice when responding to fetal shoulder dystocia during the final ten-minute period of the labor and delivery of the plaintiffs' child. The plaintiffs alleged, inter alia, that during this relevant time period, the defendant departed from the accepted standard of medical care by failing to perform a McRoberts maneuver, by failing to apply suprapubic pressure, by failing to properly perform a Woods corkscrew maneuver, and by applying excessive lateral force to the head of the plaintiffs' child, and that these departures were a proximate cause of the severe and permanent Erb's Palsy from which the plaintiffs' child now suffers. Following discovery, the defendant moved, among other things, for summary judgment dismissing the complaint insofar as asserted against him. The Supreme Court, inter alia, denied that branch of the defendant's motion. The defendant appeals. We affirm.

"In a medical malpractice action, a defendant moving for summary judgment bears the initial burden of establishing either that there was no departure from good and accepted medical practice or that any departure was not a proximate cause of the plaintiff's injuries" (Kogan v Bizekis, 180 AD3d 659, 660; see Kerrins v South Nassau Communities Hosp., 148 AD3d 795, 796). "'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'" (Kogan v Bizekis, 180 AD3d at 660, quoting Sheppard v Brookhaven Mem. Hosp. Med. Ctr., 171 AD3d 1234, 1235).

Here, in support of his motion for summary judgment, the defendant submitted, among other things, transcripts of the plaintiffs' deposition testimony, which set forth that at no time during the relevant time period of labor were the plaintiff Maria George's feet ever removed from stirrups and flexed back in order to perform the McRoberts maneuver, or that any person pressed down on the area of her abdomen in order to apply suprapubic pressure. Therefore, the defendant's own submissions failed to eliminate triable issues of fact as to whether the defendant properly responded to fetal shoulder dystocia during the relevant time period and whether the defendant proximately caused the injuries to the plaintiffs' child (see Preciado v Ravins, 190 AD3d 991, 992).

Accordingly, the Supreme Court correctly denied that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

LASALLE, P.J., MILLER, GENOVESI and LOVE, JJ., concur.

ENTER:

Darrell M. Joseph

Acting Clerk of the Court