Rose v Horton Med. Ctr.

[*1] Rose v Horton Med. Ctr. 2005 NY Slip Op 52388(U) [21 Misc 3d 1130(A)] Decided on January 18, 2005 Supreme Court, Orange County Owen, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 18, 2005
Supreme Court, Orange County

Gloria Rose, as Proposed Administrator of the Estate of Hupert Rose, Deceased, and Gloria Rose, Individually, Plaintiffs,

against

Horton Medical Center, Defendants.



194,01



Bruce C. Clark & Associates, P.C., Attorneys for Plaintiff, 22 South Bayles Avenue, Port Washington, New York 11050.

Drake, Sommers, Loeb, Tarshis Catania & Liberth, PLLC, Attorneys for Defendant, Post Office Box 1479, Newburgh, New York 12550.

Joseph G. Owen, J.

To commence the statutory time period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order with notice of entry upon all parties.

The following papers have been read, in this medical malpractice action, on defendant's motion for an order pursuant to CPLR 3212 granting summary judgment in its favor:

Notice of Motion-Affirmation of Steven I. Milligram, Esq., dated September 7, 2004-Exhibits (Including Affidavit of Pamela Murphy, M.D., sworn to August 30, 2004; Affidavit of Norman Stein. M.D., sworn to August 26, 2004) Memorandum of Law

Affirmation in Opposition of Peter L. Gale, Esq., dated November 5, 2004- Exhibits (Including Affidavit of Gloria Rose, sworn to November 5, 2004)

Reply Affirmation of Steven I. Milligram, Esq., dated November 23, 2004- Affidavit of Norman Stein, M.D., sworn to November 23, 2004-Exhibits

Upon the forgoing papers, it is hereby ORDERED that the motion is granted, and the complaint is dismissed.

Submit judgment to Orange County Clerk, as Clerk of the Court, with bill of costs. [*2]

Plaintiff's decedent died on March 2, 1999, allegedly from a myocardial infarction. He had been admitted to defendant Horton Medical Center for several time intervals, including from January 31, 1999 to February 2, 1999, from February 3, 1999 to February 12, 1999, and from February 17, 1999 to March 2, 1999. Plaintiff alleges that defendant hospital's alleged medical malpractice was a substantial factor in causing her husband's March 2, 1999 death.

Defendant's prior motion for summary judgment was granted by this Court's short form order dated August 14, 2002, and plaintiff appealed. The Appellate Division, Second Department reversed, holding in its March 9, 2004 decision and order as follows:

The defendant, Horton Medical Center (hereinafter the Hospital), established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiffs decedent was treated only by private attending physicians who were not employees of the Hospital, and thus could not be held vicariously liable for any alleged malpractice (see. Woodard v. LaGuardia Hosp., 282 AD2d 529). However, in opposition thereto, the plaintiff raised a material issue of fact in this regard by submitting proof that a doctor who may have been a hospital employee, examined and prescribed a course of treatment for the decedent on the day before he died. ..

(March 9, 2004 Decision and Order of the Appellate Division. Second Department p. 2 [emphasis supplied]) As decedent died on March 2, 1999, the Appellate Division is evidently referring to a doctor who "examined and prescribed course of treatment..." on March I, 1999. This doctor, however, was not identified.

Defendant again moves for summary judgment. By its motion papers, and specifically through the affidavits of emergency room physician Pamela Murphy, M.D. and Vice President Norman Stein, M.D., defendant identifies every physician who provided services to or on behalf of decedent during the courses of treatment, showing that none of them were employed by defendant. On this basis, and in light of the narrow issue identified by the Appellate Division, defendant seeks dismissal of the complaint.

In rendering its determination, the Court must remain cognizant of the Appellate Division's above-quoted decision and order, which held (1) that defendant had established a prima facie case of entitlement to judgment; but (2) that a narrow issue of fact existed as to whether some unidentified doctor, who "examined and prescribed a course of treatment for the decedent" on March 1, 1999, was an employee of defendant.

As a threshold issue, plaintiff argues that defendant is improperly attempting to renew its prior summary judgment motion (see. CPLR 2221[e)). The Court disagrees.

As explained by Professor Siegel:

A denial of a motion for summary judgment is res judicata of nothing except that summary judgment was not warranted. It may be law of the case, however, insofar as that a subsequent summary judgment motion in the same case and on the same proof will not be entertained. "Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause." LaFreniere v. Capital District [*3]Transp. Authority, 105 AD2d 517, 481 NYS2d 467 (3rd Dep't. 1984).

(Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3212:21, at 30 [emphasis supplied]). Denial of a summary judgment motion, for instance, does not preclude a trial judge from later directing a verdict or granting a judgment notwithstanding the verdict (Id.).

In this particular instance, the Court initially granted defendant's summary judgment motion. The Appellate Division, while agreeing that a prima facie case had been made, identified a narrow issue of fact on the record before it. Defendant now addresses that narrow issue of fact, relying on different proof. As the "denial of a motion for summary judgment may not even be deemed to establish that the case presents a triable issue of fact" (Id.), to hold that the Court is now automatically precluded from entertaining the instant motion would be to require the vacuous exercise of commencing a trial even in the complete absence of triable issues.

Plaintiff next argues that defendant may be held vicariously liable through the alleged emergency room malpractice of physicians Dr. Pamela Murphy and Dr. Shiao-Ang Shih, even if they were not employed by defendant (see. Ryan v. New York City Health and Hospitals Corp., 220 AD2d 734, 736). [FN1] In support of this claim, plaintiff submits a redacted copy of an affirmation by an unnamed expert, dated November 7, 2004. FN1. Plaintiff makes no apparent argument that alleged independent acts of negligence were committed by hospital employees, separate and apart from the involved doctors (cf. Woodard v. LaGuardia Hosp., 282 AD2d 529, 530)..

In the first instance, the sole issue identified by the Appellate Division related to the alleged malpractice of a claimed employee-physician on March 1, 1999, not the alleged malpractice of emergency room care by independent physicians rendered on other dates. Plaintiff fails to identify any such physician. Moreover, even if liability could be predicated upon emergency room care, plaintiff fails to even show that such care was rendered on March 1, 1999.

Secondly, as plaintiff has not provided the Court with an unredacted original of this expert's affirmation for in-camera inspection, it may not be relied upon to defeat defendant's summary judgment motion (see, Cook v. Reissner, 295 AD2d 466, 467; Fuller v. Tae Kwon. 259 Ad2d 662,662-663; Marano v. Mercy Hosp., 241 AD2d 48, 50).

In short, "plaintiff [has] failed to present any evidence that... [some unidentified physician) was an employee of... [defendant hospital] or that the exception to the general rule applies here..." (Woodard v. LaGuardia Hosp., 282 AD2d 529, 530).

So ordered.

ENTER [*4]



HON. JOSEPH G. OWEN SUPREME COURT JUSTICE

Dated: January 18, 2005

Goshen, New York

APPEARANCES:

BRUCE C. CLARK & ASSOCIATES, P.C.

Attorneys for Plaintiff

22 South Bayles Avenue

Port Washington, New York 11050

DRAKE, SOMMERS, LOEB, TARSHIS

CATANIA & LIBERTH, PLLC

Attorneys for Defendant

Post Office Box 1479

Newburgh, New York 12550

NCAS

Rose v. Horton Medical Center