McCord v Paksima

[*1] McCord v Paksima 2012 NY Slip Op 52133(U) Decided on October 26, 2012 Supreme Court, Kings County Steinhardt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 26, 2012
Supreme Court, Kings County

Mark McCord, Plaintiff,

against

Nader Paksima, D.O., DAVID E. RUCHELSMAN, M.D., NYU HOSPITAL FOR JOINT DISEASES, APOSTOLOS TAMBAKIS, M.D., MAVIS POLIDORE, AND CENTRAL BROOKLYN MEDICAL GROUP, Defendants.



30025/08



Attorney for plaintiff: Ebanks & Sattler, LLP, 20 Vesey Street, Suite 503, New York, NY 10007 212-766-4411

Attorney for defendant Apostolos Tambakis, M.D., and Central Brooklyn Medical Group: Garson DeCorato & Cohen LLP, 110 Wall Street, 10th Floor, New York, New York 10005

Attorney for Defendant NYU Hospitals Center s/h/a NYU Hospital for Joint Diseases and David E. Ruchelsman, M.D., McAloon & Friedman, P.C., 123 William Street, 25th Floor, New York, New York 10038-3804, 212-732-8700

Attorney for Defendant Nader Paksima, D.O., Patrick F. Adams, P.C., 3500 Sunrise Highway, Building 300, Great River, New York 11739 - 631-666-6200

Marsha L. Steinhardt, J.

The following papers numbered 1 to 6 read herein:Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and Affidavits

(Affirmations) Annexed1, 2, 3

Plaintiffs' Opposing Affidavits (Affirmations)4

Defendants' Reply Affidavits (Affirmations)5, 6

Plaintiffs' Supplemental Opposing Affidavits (Affirmations)

Defendants' Supplemental Reply Affidavits (Affirmations) [*2]

Plaintiff moves for an Order pursuant to CPLR 3042(b), 3043(b) and 3025(b) granting leave to serve a Fourth Supplemental Bill of Particulars and extending the time to file a Note of Issue. Defendants DAVID E. RUCHELSMAN, M.D. and NYU HOSPITAL FOR JOINT DISEASES (NYU-HJD) oppose plaintiff's motion and cross move for summary judgment. Defendants APOSTOLOS TAMBAKIS, M.D. and CENTRAL BROOKLYN MEDICAL GROUP move for an Order granting summary judgment in their favor. Plaintiff opposes the motions seeking summary judgment.

Now, upon the foregoing papers and upon oral argument on October 4, 2012 and due deliberation had thereon the plaintiff's motion for leave to serve a Supplemental Bill of Particulars dated November 22, 2011 is GRANTED; the motion of DAVID E. RUCHELSMAN, M.D. and NYU HOSPITAL FOR JOINT DISEASES (NYU-HJD) for summary judgment is GRANTED; the motion of APOSTOLOS TAMBAKIS, M.D. and CENTRAL BROOKLYN MEDICAL GROUP is DENIED.

This is an action sounding in medical malpractice wherein plaintiff claims that defendants failed to properly treat his finger injury resulting in necrosis and partial amputation of the right fifth finger. Specifically, plaintiff claims that Dr. Tambakis failed to maintain plaintiff's finger splinted for an additional 6 weeks after the initial period of splinting. Plaintiff claims that Dr. Paksima, a hand surgeon who performed the procedure on September 25, 2006 failed to advise and instruct him to keep his hand elevated and claims that the surgical bandage was applied too tightly. His claims against Dr. Ruchelsman, an orthopedic surgical resident assisting in the procedure, are similar to those made against Dr. Paksima. Lastly, Plaintiff's claims that NYU-HJD, through its staff, failed to instruct him to elevate his hand. As a result of these departures, plaintiff alleges that his finger became necrotic requiring a partial amputation. Plaintiff also claims he sustained psychological injury as a result of the amputation of the tip of his fifth finger.

Plaintiff Mark McCord injured his finger while driving a bus on May 24, 2006. Plaintiff presented to Central Brooklyn Medical Group that day and was seen by Dr. Tambakis the following day. He was diagnosed with a "mallet finger" which is an injury to the tendon causing the tip, the distal interphalangeal ("DIP") joint, of his fifth finger to bend. Dr. Tambakis' plan was to treat the finger conservatively, splinting the finger for approximately six weeks while monitoring its progress every two week. The splint was discontinued seven weeks later on July 14, 2006. On July 28, 2005, Dr. Tambakis referred Mr. McCord to Dr. Paksima as plaintiff was unable to extend the outermost joint of the finger. After examining plaintiff on August 15, 2006, Dr. Paksima decided that surgery was an appropriate option and offered plaintiff the choice of surgery or continued splinting. Plaintiff decided to undergo surgery on September 25, 2006.

The surgery involved elongating the extensor mechanism of the finger, reducing the joint and using a K-wire to stabilize it. Dr. Paksima performed the surgery at NYU-HJD with the assistance of Dr. Ruchelsman, a third year orthopedic resident. It is uncontested that the extent of Dr. Ruchelsman's participation was limited to holding the finger during surgery, positioning the hand and assisting with retraction. Postoperatively, Dr. Ruchelsman held plaintiff's hand while Dr. Paksima bandaged it and put it on a splint. Plaintiff was discharged the day of the surgery. When Mr. McCord returned to Dr Paksima for a follow up on October 3, 2006 he presented with dirty wet bandages around his finger. Mr. McCord testified that he got the bandages wet and dirty from reaching for papers he dropped on the subway tracks. Dr. Paksima's note indicates that Mr. [*3]McCord wet the bandages a few times since the surgery and damaged his hand by using a stick to retrieve a file he dropped on to subway tracks. The records of the examination note discoloration of the tip, severe maceration, damage of the skin and odor. The note indicates that Mr. McCord was instructed to change the bandage daily and to allow for the hand to dry out after each hand washing. That night Mr. McCord was admitted to NYU-HJD diagnosed with dry necrosis of the distal phalanx. During the admission, on October 7th, the finger was noted to have dry gangrene. On October 9, 2006, it was decided to perform an incision and drainage under general anesthesia. Plaintiff was discharged the following day. Dr. Paksima's office note dated October 17, 2006 states that the wound looked worse and showed signs of infection with pus draining from the sides of the wound. Amputation of the tip of the finger with gangrenous tissue was performed on October 20, 2006.

Plaintiff seeks leave herein to supplement his original Bill of Particulars against NYU-HJD with service of a Fourth Supplemental Bill of Particulars dated November 22, 2011. It states, "(i)n addition to that stated in plaintiff's prior bills of particulars, Defendant NYU Hospital for Joint Diseases, their agents servants and employees failed to properly follow orders, protocols and procedures and failed to properly care for, treat and provide instructions to the plaintiff post-operatively."

Plaintiff's original Bill of Particulars was served upon defendants Dr. Ruchelsman and NYU-HJD on or about March 17, 2009. The Bill of Particulars states, inter alia, that these defendants were negligent in failing to appropriately monitor and manage the patient before, during and after surgery, failing to render appropriate follow up care, failing to take appropriate steps to avoid vascular compromise, failing to make appropriate recommendations to the patient and/or recommendations to the patient were contraindicated, failing to appropriately communicate with the patient.

It is well settled that leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise, unless the amendment is sought on the eve of trial. Alvarado v. Beth Israel Medical Center, 78 AD3d 873 (2d Dept. 2010). Here, defendant NYU-HJD cannot claim prejudice as the allegations sought to be added to plaintiff's claims were set forth in general language in the original Bill of Particulars. Additionally, the specific claim that NYU-HJD did not give plaintiff instructions to elevate his hand has been the subject of much discovery and deposition inquiry. Indeed, Nurse Amelita Fabello, the recovery room and discharge nurse was asked numerous questions about elevating the hand, applying a sling and details about instructions given to the patient. Defendants cannot now claim prejudice or surprise since the information which serves as the basis for the new allegations has been known to the defendants through discovery. See also, Adams v. Jamaica Hosp., 258 AD2d 604 (2d Dept 1999); Archer v. Haeri, 91 AD3d 685 (2d Dept. 2012). At this point it should come as no surprise to defendants that plaintiff's claims include allegations that its staff failed to give him proper discharge instruction. Therefore, plaintiff is granted leave to serve a Fourth Supplemental Bill of Particulars upon defendants Dr. Ruchelsman and NYU-HJD.

On a cause of action sounding in medical malpractice, "the requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of injury or damage." Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009) citing, Geffner v. North [*4]Shore Univ. Hosp., 57 AD3d 839, 842 (2d Dept. 2008); see Deadwyler v. North Shore Univ. Hosp. at Plainview, 55 AD3d 780, 781 (2d Dept. 2008). "On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury. General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment." Rebozo v. Wilen, 41 AD3d 457, 458 (2d Dept. 2007); Flanagan v. Catskill Regional Medical Center, 65 AD3d 563 (2d Dept. 2009); see Alvarez v. Prospect Hosp., 68 NY2d 320, 324-325 (1986); Sheenan-Conrades v. Winifred Masterson Burke Rehabilitation Hosp., 51 AD3d 769, 770 ( 2d Dept. 2008); Thompson v. Orner, 36 AD3d 791, 792 (2d Dept. 2007); DiMitri v. Monsouri, 302 AD2d 420, 421 (2d Dept. 2003). The plaintiff opposing a defendant physician's motion for summary judgment must only submit evidentiary facts or materials to rebut the defendant's prima facie showing. Stukas v. Streiter, 83 AD3d 18 (2d Dept. 2011).

Defendants Dr. RUCHELSMAN and NYU-HJD move for summary judgment claiming that each did not depart from accepted standards of practice and that the treatment and care rendered to plaintiff did not proximately cause his injuries. Submitted in support of their motion is the affirmation of Robert J. Strauch, M.D. a physician board certified in Orthopedic Surgery with a Certificate of Added Qualifications in Hand Surgery.

Dr. Strauch affirms that surgery was a medical judgment call made by Dr. Paksima that did not involve Dr. Ruchelsman. Dr Paksima performed and was responsible for all the technical aspects of the surgery and Dr Ruchelsman's participation was under Dr. Paksima's supervision. Indeed, Dr. Paksima bandaged and splinted the finger during the surgery. Although Dr. Ruchelsman wrote one discharge order it was made under the direction of Dr Paksima. Based on this, the expert opines that Dr. Ruchelsman did not depart from the accepted standards of care. Furthermore, based upon review care and treatment rendered to Mr. McCord by the attending, Dr. Paksima, Dr. Strauch opines that nothing in the surgical or post surgical course was so clearly contraindicated by normal standards of practice that required Dr. Ruchelsman to inquire as to the correctness of Dr. Paksima's actions.

On the basis of submissions and papers supporting Dr. Ruchelsman's motion, the Court finds that he has met his burden for judgment as a matter of law. Plaintiff does not submit any opposition to Dr. Ruchelsman's request for summary thus Dr. Ruchelmans's prima facie showing of entitlement to summary judgment is not rebutted. Accordingly, Dr. Ruchelsman is granted summary judgement.

Dr. Strauch's affirmation also sets forth his opinion that the employees of NYU-HJD did not depart from the standard of care in the care and treatment of Mr. McCord and that the alleged malpractice was not a proximate cause of the plaintiffs' injuries. He reviewed the deposition testimony of Nurse Amelita Fabello, an R.N. assigned to the Post Anesthesia Unit who was involved in the post surgical care of Mr. McCord and gave him discharge instructions. Nurse Fabello testified that the chart documents an order for a sling for the plaintiff's arm. She further testified that where the surgery involves the hand, the staff automatically elevates the patient's hand after the procedure. Dr. Strauch relied on the deposition testimony of Dr. Paksima, who [*5]testified that he instructed plaintiff to keep the hand elevated post surgery, thus opining that the patient received proper instruction in accordance with the standard of care. He states that there is no requirement that multiple health care providers inform a patient of the same post-operative care instructions. Dr. Strauch also opines that any alleged failure by Nurse Fabello to advise plaintiff to elevate his arm was not a substantial factor in causing injury.

Through medical records, depositions, and an affirmation of an expert witness, defendant NYU-HJD established their entitlement to judgment as a matter of law. See, Jonassen v. Staten Island University Hosp., 22 AD3d 805 (2d Dept 2005).

Plaintiff vehemently claims that the staff failed to follow protocol by failing to give the patient instructions to keep his hand elevated and argues that the question of whether the hospital gave the patient proper instruction is disputed and sufficient to preclude judgment as a matter of law. As previously mentioned, much discovery has ensued regarding what, if any, instruction was given to Mr. McCord regarding care for his hand after the surgery of September 26, 2006. The deposition of the parties provide details to solve this query.

Dr. Paksima was deposed on a number of separate occasions commencing on June 4, 2010 and gave the following testimony:

Q:Did you explain anything to him at that point about the dressing and wound changing?

A:Yes, I told him on August 15th that he had to keep the bandages on, keep it clean, keep his hand elevated , I go through the post-operative routine with him exactly what they need to know and the follow-up appointment. (p 147; 16-22 emphasis added).

Q:Did you see the patient on the morning of the surgery?

A:Yes.

Q:Did you speak to him that day before the surgery?

Q:What did you say to him and what did he say to you?

A:So, I saw Mr. McCord prior to the surgery in the holding area, I went over the surgery again with him, what he would expect, what was going to happen to him when he goes in the room, what the anesthesiologist was going to talk to him about, what type of operation he was going to have, what he should do after the surgery, keeping his hand elevated, keeping the bandages clean and dry, post-operative appointment, what things to look for that would be dangerous signs that he should talk to me about, we discussed risks, benefits and alternatives, if there was anything else that could be done and he was waiting for surgery. (p.159-161;19-15 emphasis added).

Q:Did you have a conversation with him before he signed the consent?

A:I asked hin if he had anything to eat or drink that morning, who's taking him home. I went over his post operative care instructions, what to do with his hand, how to keep it elevated, keep the bandages clean and dry, what pain medications to take, when he should come for a follow-up appointment...." (p. 263; 9-21).

Nurse Fabello testified on November 18, 2011. She was asked a number of questions about post operative instructions. The transcript of her relevant testimony is as follows:

Q:What was your custom and practice as to what you would tell a patient to educate him on [*6]how to care for his hand postoperatively, after hand surgery, such as the one Mr. McCord underwent on September 25th, 2006. (p. 37; 6-11)

A:Follow the doctor's instructions, elevate your hand above level of your heart, to prevent swelling. (p.37;14-16)

Q:When you say level with your heart—

A:Above the level of the heart, yes. You could elevate it with pillows or— and make sure you observe your fingers, if you see anything unusual or not normal, you call your doctor or any problem, call your doctor or go the nearest hospital. (p. 37;17-25).

Q:At the time you were assessing his hand, do you know if it was— can you tell from this, what position it was in if it was elevated or something else?

A:I can't recall. But automatically from the operating room we elevate if it is the hand.

Q:Are they always elevated in the sling or elevated with a pillow or something else?

A:Either sling or pillows. (p. 30-31; 16-3).

Q:Is that something that would normally be indicated in the chart that the effected limb was being positioned elevated and maintained with pillows? (p. 25; 13-16)

A:Usually we elevate the— it is automatic, we elevate the hand when they come out of the operating room. Where they had the surgery in the hand, we elevate. (p. 25; 22-25).

Q:Was there any specific instructions on how a patient is supposed to position the hand or sleep with the hand or anything like that, that you have to give the patient before they discharge?

A:We verbally tell them to elevate your hand, if it is a hand surgery to prevent swelling.

Q:Anything specific as to how to sleep with the hand?

A:Always elevate. (p. 43-44; 22-8).

Plaintiff was deposed on November 9, 2009, January 8, 2010, January 25, 2010, February 3, 2010 and March 12, 2010. On January 25, 2010 his testimony regarding instructions was as follows:

Q:On August 15, 2006, you had your first appointment with Dr. Paksima. Do you recall anything that was discussed with you at that appointment other than that Dr. Paksima recommended surgery, stating it would be a simple procedure that would correct your finger?

A:No, I don't recall what else what said. (p. 275 12—20 emphasis added).

On that same occasion plaintiff's testimony was:

Q:Did Dr. Paksima give you any instructions on August 15, 2006?

A:What I recall was that I needed a physical to determine whether I would be fit enough for surgery.

Q:Were you given any other instructions by Dr. Paksima on August 15, 2006?

A:Not that I recall. (p. 285; 12-21 emphasis added).

Later that same session, the following questions and answers were recorded:

[*7]Q:Do you recall any communication with any healthcare provider at the hospital on September 25, 2006 after your surgery and before you left the hospital?

A:I don't recall. I don't recall any correspondence with the nurses after the surgery. I only recall leaving and I wasn't given any verbal instruction on how to treat the hand. They gave me something in writing that was it and I left. (p. 343-344; 20-4)

On February 3, 2010, plaintiff's testimony was the following:

Q:Had you been given instruction to keep your right pinkie finger elevated upon your discharge from the hospital after your September 25, 2006 surgery by Dr. Paksima?

A:I don't recall. (p. 520; 16-22 emphasis added).

Q;The question was, did you have to keep your arm in any particular position?

Q:Like on pillows or elevated, if you recall, were you told to keep it in any particular position?

A:I don't recall. (p. 659; 2-11 emphasis added).

Submitted with his motion for leave to supplement his Bill of Particulars is an affidavit from Mr. McCord, dated January 18, 2012, stating that "(p)rior to discharge I was only given written instructions by the nurses which did not state anything about elevating my hand, and I was not given any verbal instructions by the nurses on how to treat my hand, and they did not tell me that I needed to elevate my hand consistently and above my heart..." Plaintiff submitted a second affidavit dated August 2, 2012 in support of his opposition to NYU-HJD's motion for summary judgment. The sum and substance of the second affidavit is that Mr. McCord was not given verbal instruction by the nurses or any health care provider, including Dr. Paksima, on how to treat the hand nor that the hand needed to be consistently elevated after surgery. He argues that his affidavits raise a question of fact as to whether NYU-HJD properly instructed plaintiff to elevate the hand therefore precluding summary judgment.

The Court however rejects plaintiff's argument. It is well settled that credibility is generally not considered in a summary judgment motion "unless it clearly appears that the issues are not genuine, but feigned." Glick & Dolleck v. Tri—Pac Export Corp., 22 NY2d 439, 441 (1968). In Luiso v. Northern Westchester Hosp. Center, 65 AD3d 1296 (2d Dept 2009), the Second Department held that the lower court properly disregarded opposition papers, which contradicted plaintiff's deposition testimony and handwritten notes. The Appellate Division found that the submission raised only feigned issues of fact and were properly disregarded by the Supreme Court. In Hunt v. Meyers, 63 AD3d 685 (2d Dept 2009), the plaintiff claimed that he fell on defendant's premises but stated in his deposition that he did not know what caused him to fall. In opposition to defendant's summary judgment motion he submitted his affidavit identifying ice and inadequate lighting as the causes of his accident. The Second Department reversed the lower court's denial of summary judgment finding that the affidavit presented "feigned issues of fact designed to avoid the consequences of his earlier deposition testimony, and thus was insufficient to defeat the defendant's motion." Supra at 685-686. Similarly, in Hughes-Berg v. Mueller, 50 AD3d 856 (2d Dept.2008), plaintiff brought an action against the municipality claiming that the police failed to protect her from a sexual assault. At her deposition, plaintiff [*8]testified that she did not remember the police officer telling her to go home with the assailant, a passerby; yet, she submitted an affidavit in opposition to a summary judgment motion stating that the officer put her in the passerby's car and assured her that the passerby would take her home. The Second Department held that the affidavit feigned an issue of fact and was insufficient to avoid summary judgment.

Here, too, plaintiff's affidavit is insufficient to overcome summary judgement as to NYU-HJD. Plaintiff testified repeatedly that he did not recall receiving instructions from either Dr. Paksima or the healthcare personnel from NYU-HJD. The court will not now accept an affidavit positively attesting to a failure to provide instruction while throughout discovery plaintiff has repeatedly stated that he has no recollection of whether or not instructions were given to elevate his hand. Thus, having rejected the affidavits attested to by plaintiff, the evidence presented herewith does not raise an issue of fact as to NYU-HJD's care and treatment of plaintiff deviated from the standard of care.

Additionally, the affirmation of plaintiff's expert fails to rebut NYU-HJD's showing of entitlement to judgment. Plaintiff's expert, a physician board certified in Orthopedic Surgery, opines that necrosis and amputation are not expected complications of a mallet finger repair surgery and that the medical cause of plaintiff's injury was vascular compromise which resulted from the circular Coban dressing being applied too tightly after surgery. He states that the dressing must be applied to accommodate for post operative swelling. The Court notes that these claims are not aimed at NYU-HJD rather they are directed at Dr. Paksima. Possibly pertaining to NYU-HJD is his opinion that "a potential aggravating factor in this case would be if the patient's arm were not properly and consistently elevated, as elevation would decrease the amount of post operative swelling." The expert states that the failure of NYU-HJD to follow protocol and orders and the failure provide instructions post-operatively proximately cause plaintiff's injuries.

However, the affirmation of Plaintiff's expert as to the claims against NYU-HJD is speculative and not based on all the evidence. It is settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness. Nyon Sook Lee v Shields, 188 AD2d 637 (2d Dept. 1992). The expert also fails to differentiate between the acts of the defendant surgeon and the hospital staff. Additionally, the expert fails to explain how the failure of the NYU-HJD staff was a substantial factor in causing necrosis and partial amputation. See, Jonassen v. Staten Is. Univ. Hosp., 22 AD3d 805, 806 (2d Dept. 2005). Indeed, the expert automatically assumes that the injuries were caused by the claimed departure. An expert may not reach a conclusion by assuming material facts not supported by the evidence, and may not guess or speculate in drawing a conclusion Nyon Sook Lee v Shields, supra; Reilly v. Ninia, 81 AD3d 913 (2d Dept. 2011). The court finds that the opinions of plaintiff's expert are conclusory, speculative, and without a factual basis in the record and therefore insufficient to defeat summary judgment. See, Lau v. Wan, 93 AD3d 763 (2d Dept.2012); Andreoni v. Richmond, 82 AD3d 1139 (2d Dept. 2011); Ellis v. Eng, 70 AD3d 887 (2d Dept. 2010); Micciola v. Sacchi, 36 AD3d 869, 871—872 (2d Dept. 2007). Accordingly, the motion of NYU-HJD for summary judgment is granted.

Defendant Dr. Tambakis supports his motion for summary judgment with the affirmation of Salvatore Lenzo, M.D. a physician board certified in Orthopedic surgery with a sub-certification in hand surgery. Dr Lenzo opines that Dr. Tambakis maintained the standard of care [*9]by splinting the plaintiff for six weeks and then making a referral for possible surgery at eight weeks. He also opines that Dr. Tambakis appropriately monitored Mr. McCord's finger throughout this period of time.

In opposition, plaintiff's expert affirmation states that the joint must be kept in full extension even if the splint is removed. He states that splinting is recommended for up to 12 weeks and, if results are not achieved after 6 weeks, the splinting should be continued. The plaintiff's expert opined that the failure to re-splint was the proximate cause of the plaintiff's injuries because proper conservative treatment would have precluded the ensuing surgery.

The evidence submitted indicates that plaintiff's finger remained splinted for approximately 7 weeks until July 14, 2006. At that time, plaintiff's finger was swollen and tender at the DIP joint. The splint was not re-applied on this date. Plaintiff's expert opines that the standard would have required Dr. Tambakis to re-splint the finger for up to another six weeks. Re-splinting was not done. Therefore, an issue of fact exists as to whether the failure to re-splint was a departure from the standard of care.

Furthermore, the affirmations of the experts are appropriately detailed and conflict as to of the standard of care for this type of injury. "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept 2005)[internal citations omitted]; Colao v. St. Vincent's Med. Ctr., 65 AD3d 660, 661 (2d Dept. 2009); Deutsch v. Chaglassian, 71 AD3d 718 (2d Dept. 2010); Barnett v Fashakin, 85 AD3d 832, 835 (2d Dept. 2011). In light of the issue of fact raised by plaintiff and the conflicting opinions of the experts the motion of Dr. Tambakis and Central Brooklyn Medical Group must be denied.

In accordance with the above, the Clerk is directed to enter judgment in favor of defendant DAVID E. RUCHELSMAN, M.D. and NYU HOSPITAL FOR JOINT DISEASES. Plaintiff's request to extend his time to file a Note of Issue is granted and extended to January 17, 2013.

This constitutes the decision, opinion and order of this court.

ENTER,

HON. MARSHA L. STEINHARDT

J. S. C.