Litz v Brisman

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Litz v Brisman 2011 NY Slip Op 32129(U) July 25, 2011 Sup Ct, Nassau County Docket Number: 015673/06 Judge: Jeffrey S. Brown Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRE S E NT: HON. JEFFREY S. BROWN JUSTICE TRIAL/IAS PART 21 JON LITZ , as Executor of the Estate of LISA LITZ, deceased and JON LITZ , Individually, Plaintiff Index No. 015673/06 - against - Mot. Seq. # 4 MICHAEL H. BRISMAN , M. , MICHAEL BRISMAN, D., P. c., NEUROLOGICAL SURGERY, P. c., ANDREW S. WEBER , M. , DARYL A. PERLMAN, D., DARYL PERLMAN PHYSICIAN, P. c., DARYL A. PERLMAN, D. , LLC., DAVID S. GROSSMAN, M. D., LOUIS FILIPPONE, M. SCOTT SPRINGER, M. D., MARK A. MITTLER D., DAVID J. CHALIF, M. D., LONG ISLAND NEUROLOGICAL ASSOCIATES, P. C., " JOHN/JANE DOE" (i. e. the individual who authored the note of 9/19/04 , following a timed note of 15:15); NORTH SHORE UNIVERSITY HOSPIT AL AT PLAINVIEW and NORTH SHORE UNIVERSITY HOSPITAL AT MANHASSET Mot. Date 12- 13- Submit Date 7- Defendants. The following papers were read on these motions: Papers Numbered Notice of Motion , Affidavits (Affirmations), Exhibits Annexed.................... Defendants move by notice of motion (Motion Sequence # 4, 6,7, 11) for the following relief: an order pursuant to CPLR 3211 and 3212 granting summary judgment and dismissing the action with prejudice. There is no opposition to the instant applications despite all necessary parties being properly served. , " [* 2] To establish a prima facie case ofliability in a medical malpractice action , a plaintiff must prove (1) the standard of care in the locality where the treatment occurred , (2) that the defendant breached that standard of care , and (3) that the breach of the standard was the proximate cause of injury (see , Berger v. Becker 272 AD.2d 565). To succeed on a summary judgment motion in a medical malpractice action , the moving party must make a prima facie showing of the absence of a triable issue of fact as to whether the defendant physician was negligent (see , Taylor v. Nyack Hospital 18 AD. 3d 537). Thus , a moving defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see, Wiliams v. Sahay, 12 A. 3d 366). A moving defendant must address the allegations set forth in the complaint and the bill of particulars (see Terranova v. Finklea 45 AD. 3d 572). Bare allegations that do not refute the specific factual allegations of the case are insufficient to establish entitlement to judgment as a matter oflaw (see, Grant v. Hudson Valley Hosp. Center 55 AD. 3d 874). If the moving party meets their burden , in opposition a plaintiff must submit a physician s affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor s opinion that the defendant' s omissions or deparures were a competent producing cause of the injury. " Domaradzki v. Glen Cove Ob/Gyn Assocs. , 242 AD.2d 282 (2 Dept. 1997). Plaintiff has not submitted any opposition to the instant applications. Motion Sequence #4 Defendant Robert Linden , MD moves pursuant to cPLR 3211 and 3212 to dismiss the action. Based on his deposition testimony and decedent' s medical records , Dr. Linden has made prima facie showing of the absence of a triable issue of fact as to whether he was negligent. (see, Alvarez v. Prospect Hosp. 68 N. Y.2d 320) He makes clear that he had no duty of care to decedent as he was not involved in the issues which form the basis of plaintiffs claim. As the moving defendant has met his burden by demonstrating the absence of a departure from good and accepted medical practice , the burden now shifts to the plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician s affdavit of merit attesting to departure from accepted practice and that such departure or omission was the proximate cause of decedent' s injury, the application to dismiss with prejudice , is GRANTED in its entirety. Motion Sequence #5 Defendants Mark A. Mittler , MD , David J. chalif, MD and Lina , PC s/h/a Long Island Neurological Associates , PC , move inter alia for the following relief: pursuant to cPLR 3211 (a)(7), dismissing the plaintiffs cause of action for lack of informed consent , as the plaintiff has failed to plead a viable cause of action pursuant to Public Health Law 2805- d; and pursuant to cPLR 3212 , dismissing plaintiffs claims for medical malpractice , wrongful death , and informed consent. [* 3] Based upon an expert affidavit of Dr. Alan G. Segal , defendants have made aprimafacie showing of entitlement of summary judgment. As the moving defendants have met their burden by demonstrating the absence of a departure from good and accepted medical practice , the burden now shifts to the plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician s affidavit of merit attesting to a departure from accepted practice and that such departure or omission was the proximate cause of decedent' s injury, the application to dismiss with prejudice , is GRANTED in its entirety. Motion Sequence #6 Defendants Michael H. Brisman , MD , Michael H. Brisman , Me , pc , s/h/a Michael Brisman MD , PC , Neurological Surgery, PC , and David Grossman MD , move for summary judgment pursuant to CPLR 3212 (a) (b) and (e). Based on the expert affidavits of Dr. Douglas Cohen , MD , and David Tarkoff, MD prima facie showing of entitlement to summary judgment. As the moving defendants have met their burden by demonstrating the absence of a departure from good and accepted medical practice , the burden now shifts to the plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician s affidavit of merit attesting to a deparure from accepted practice and that such departure or omission was the proximate cause of decedent' s injury, the application for summary judgment , is GRANTED with prejudice in its entirety. defendants have made a Motion Sequence #7 Defendants Daryl Perman , DO , s/h/a Daryl A. Perlman , MD , Daryl Perlman Physician PC and Daryl Perlman , DO , LLC s/h/a Daryl A. Perlman DO , LLC , move for summary judgment pursuant to CPLR 3212. Based upon an expert affidavit of Howard D. Kolodny, MD , defendants have made a showing of entitlement to summary judgment. As the moving defendants have met their burden by demonstrating the absence of a departure from good and accepted medical practice , the burden now shifts to the plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician s affidavit of merit attesting to a departure from accepted practice and that such departure or omission was the proximate cause of decedent' injury, the application for summary judgment , is GRANTED with prejudice in its entirety. prima facie Motion Sequence #8 Defendants North Shore University Hospital at Plainview , (hereinafter " Plainview North Shore University Hospital at Manhasset (hereinafter " Manhasset" ) and Andrew S. Weber , move for summary judgment pursuant to CPLR 3212. [* 4] Defendants Plainview and Manhasset rely on the expert affidavits submitted by codefendant doctors to establish their prima facie entitlement to summary judgment since the decedent' s care was rendered by these physicians during her admissions to Plainview and Manhasset. As the moving defendants have met their burden by demonstrating the absence of a deparure from good and accepted medical practice , the burden now shifts to the plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician affidavit of merit attesting to a departure from accepted practice and that such departure or omission was the proximate cause of decedent' s injury, the application forsummary judgment is GRANTED with prejudice in its entirety. Based on his deposition testimony and decedent' s medical records , Dr. Weber , a showing of the absence of a triable issue of fact as to whether he was negligent (see, Alvarez v. Prospect Hosp. 68 N. Y.2d 320) He makes clear that he had no duty of care to decedent as he was not involved in the issues which form the basis of plaintiffs claim. As the moving defendant has met his burden by demonstrating the absence of a deparure from good and accepted medical practice , the burden now shifts to t e plaintiff to establish the existence of a material issue of fact. Since plaintiff failed to submit a physician affidavit of merit attesting to a departure from accepted practice and that such departure or omission was the proximate cause of decedent' s injury, the application for summary judgment is GRANTED with prejudice in its entirety. pulmonologist , has made a prima facie Motion Sequence #11 Defendants Mark A. Mittler , MD , David J. Chalif, MD and Lina , PC s/h/a Long Island Neurological Associates , PC , move for an order dismissing plaintiffs complaint and any and all cross- claims with prejudice unless plaintiff obtains new counsel , and/or resumes prosecution of this case within thirty days. The application is DENIED as moot in light of the decision relating to Motion Sequence #5. This constitutes the decision and order of this Court. All applications not specifically addressed herein are denied. Dated: Mineola , New York July 25 , 2011 EFFREY S. BROWN XXX ENTERED JUL 27 2011 NASSAU COUNTY COUNTY CLERK" OFFICE [* 5] Plaintiff pro se Mr. John Litz 3 1 Marian Lane Jericho , NY 11753 Attorney for Defendants Brisman , Neurological Surgery and Grossman Bartlett McDonough Bastone & Monaghan , LLP 300 Old Country Road Mineola 11501 , NY Attorney for Defendants Mitter , Chalif and Long Island Neurological Assocs. Shaub Ahmuty Citrin & Spratt , LLP 1983 Marcus Avenue Lake Success , NY 11042- 1056 Attorney for Defendants Perlman Helwig Henderson & Ryan , LLP One Old Country Road , Ste. 428 Carle Place , NY 11514- 1806 Attorney for Defendants NSUH Plainview and Manhasset and Weber Heidell Pittoni Murphy & Bach , LLP 1050 Franklin Avenue , Ste. 408 Garden City, NY 11530 Attorney for Defendant Linden Brea Yankowitz , PC 35 North Tyson Avenue Floral Park II 00 1 Lake Success , NY 11042- 0156 , NY

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