Contreras v Adeyemi

[*1] Contreras v Adeyemi 2012 NY Slip Op 52453(U) Decided on June 8, 2012 Supreme Court, Kings County Bunyan, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 8, 2012
Supreme Court, Kings County

Francisco Contreras, Plaintiffs,

against

Babatunde Adeyemi, M.D., et al., Defendants.



46252/07

Bert A. Bunyan, J.

The following papers numbered 1 to 4 read on these motions:

Papers Numbered

Notice of Motion/Order to Show Cause/

Petition/Cross Motion and

Affidavits (Affirmations) Annexed1 - 2

Opposing Affidavits (Affirmations)3Reply Affidavits (Affirmations)4Affidavit (Affirmation)

Other Papers

Upon the foregoing papers, defendant Babatunde Adeyemi, M.D., moves for an order, pursuant to CPLR 2221, granting him leave to reargue his motion for summary judgment, which was denied by order and decision dated September 22, 2012 (the Decision), and, upon reargument, granting him summary judgment.

Movant's Contentions

In support of his motion, Dr. Adeyemi argues that although this court properly concluded that plaintiff failed to establish causation with respect to the only departures alleged against him, it improperly denied his motion for summary judgment. In addition, Dr. Adeyemi contends that the court misapplied the law of vicarious liability by concluding that Dr. Adeyemi, despite his own lack of negligence, could be held vicariously liable for the negligence of co-defendant Arvind Hazari, M.D., since the only allegations of negligence as against him are that he should have ordered a CT scan with intravenous contrast, rather than oral contrast, and that he should have included a Rovsing's sign and psoas sign test in his examination of plaintiff. Thus, Dr. Adeyemi argues that since he merely referred plaintiff to Dr. Hazari for surgery and it was Dr. [*2]Hazari's independent negligence that caused plaintiff's injuries, he cannot be held liable. Stated differently, Dr. Adeyemi argues that since there was no joint action taken by him and Dr. Hazari in treating plaintiff, the former cannot be held vicariously liable.

In so arguing, Dr. Adeyemi relies upon the court's statement that:

"[N]o liability can be premised upon the failure to perform [psoas sign, Rovsing's sign and a CT scan with intravenous contrast], except to the extent that the performance of any such test would have allowed defendants to make an earlier diagnosis and hence perform surgery sooner, since plaintiff alleges that these tests should have been conducted to enable defendant to diagnose appendicitis. It is not disputed, however, that both Drs. Adeyemi and Hazari so diagnosed plaintiff in reliance upon their examination of him, the x-ray and the CT scan with oral contrast. Plaintiff fails to establish that the failure to conduct these tests caused the injuries that he alleges that he sustained and accordingly fails to establish that defendants' conduct in not conducting these tests caused the injuries that he alleges he sustained."

(the Decision, p 22). Dr. Adeyemi argues that the above quoted language compels the conclusion that there is no causation. Dr. Adeyemi further argues that in view of these findings, it is inconsistent for the court to have concluded that he could be vicariously liable for plaintiff's claimed injuries.

Plaintiff's Contentions

In opposition to Dr. Adeyemi's motion, plaintiff argues that the doctor fails to show that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law and there is no inconsistency or confusion in the rationale for denying Dr. Adeyemi's motion for summary judgment. More specifically, plaintiff argues that the erroneous findings in the preliminary report upon which Drs. Adeyemi and Hazari relied in making their separate and joint diagnosis contributed to the substantial delay in the performance of surgery on plaintiff. Plaintiff concludes by arguing that the court correctly applied the law of vicarious liability.

Discussion

Pursuant to CPLR 2221(d)(2), a motion for leave to reargue should be based upon matters of fact or law that the court allegedly overlooked or misapprehended (see e.g. Mazinov v Rella, 79 AD3d 979, 980 [2010]; DeSoignies v Cornasesk House Tenants' Corp., 21 AD3d 715, 718 [2005]). Movant fails to make this showing.

More specifically, in support of his motion, Dr. Adeyemi ignores plaintiff's claim that the negligent delay in diagnosing him with a ruptured appendix resulted in surgery being performed on plaintiff approximately 16 hours after he presented to the emergency room, instead of on an emergent basis, which caused internal compromise, including unfettered progression of infection, peritonitis, sepsis, a complicated post-operative course and residual sequelae (Decision, p 8 and 18). Moreover, neither Dr. Adeyemi nor Dr. Hazari made a prima facie showing that the delay in diagnosing plaintiff was not a [*3]proximate cause of his alleged injuries. Finally, the court adheres to its determination that Dr. Adeyemi jointly participated with Dr. Hazari in diagnosing plaintiff, so as to render him liable for any departure from good and accepted standards of medical care (Decision, p 25-26).

Conclusion

Dr. Adeyemi's motion to reargue is denied.

The foregoing constitutes the order and decision of this court.

E N T E R,

J. S. C.