Smith v Zargaroff

[*1] Smith v Zargaroff 2004 NY Slip Op 51535(U) Decided on September 15, 2004 Supreme Court, Queens County Satterfield, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2004
Supreme Court, Queens County

SHERRI SMITH, et al., Plaintiffs,

against

DARIUSH ZARGAROFF, M.D., et al., Defendants.



1613 2002

Patricia P. Satterfield, J.

In this medical malpractice action, it is alleged that plaintiff Sherri Smith (plaintiff) suffered a nephrectomy, i.e. the surgical removal of her left kidney, as a result of the malpractice of the [*2]defendants.

On July 18, 2000, plaintiff underwent a hysterectomy performed by defendant gynecologist Dariush Zargaroff, M.D. at defendant Hospital. During the procedure, Dr. Zargaroff sought the opinion of defendant urologist Paul. J. Cutrofello, M.D. regarding plaintiff's decreased urinary output. Dr. Cutrofello treated plaintiff by ordering tests be performed to determine the cause of plaintiff's problem. Subsequently, plaintiff's left kidney was removed by a non-party surgeon.

Herein, plaintiff consents to discontinue the action against defendant Hospital.

The court will first address plaintiff's cross motion for leave to serve a second supplemental bill of particulars. CPLR 3042(b), which governs amendments to bills of particulars: "should not be confused with the provision of CPLR 3043(b) that permits the supplementation of the bill any time up to 30 days before the trial, even if the note of issue has long since been filed. That provision, applicable only in personal injury cases, is designed to permit the plaintiff to update claims of special damages. It exists independently of the right that CPLR 3042(b) confers to amend the bill. (The CPLR 3043 supplementation may be made only to update special damages. An amendment, on the other hand, can effect any change at all in the bill.)" (Siegel, 1994 Supplementary Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3042:14, 2001 Pocket Part at 114). Pursuant to CPLR 3043(c) the court has the discretion to grant leave to serve a supplemental bill of particulars after the note of issue has been filed, notwithstanding the limitations of CPLR 3043(b). Leave to amend a bill of particulars is ordinarily freely given in the absence of prejudice or surprise resulting directly from the delay (see McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]).

In the instant case, plaintiff's motion to serve a second supplemental bill of particulars was made only five months after the note of issue was filed on November 20, 2003. The proposed second supplemental bill of particulars contains allegations developed during the depositions of the defendants and therefore no surprise or prejudice can be claimed by defendants (see Hauch v Padula, 114 AD2d 807 [1985]). The proposed amendment, which seeks only to add an additional theory of recovery based upon the facts already alleged, should be granted in the absence of a showing of prejudice (CPLR 3025[b]; see Trusthouse Forte [Garden City] Mgt. v Garden City Hotel, 106 AD2d 271 [1984]; Rife v Union Coll., 30 AD2d 504 [1968]). No prejudice has been shown which would warrant denial of the motion to amend (see Jones v. Lynch, 298 AD2d 499, 500 [2002]; Loadholt v Rams Beer & Soda, 273 AD2d 446 [2000]).

In support of his motion for summary judgment, Dr. Cutrofello submits the affidavit and affirmation of Joshua Becker, M.D., a uroradiologist, who concludes that defendant Cutrofello did not depart from good and accepted standards of medical practice with respect to his treatment of plaintiff and that he did not contribute to or proximately cause her injuries. This evidentiary submission, which indicates that defendant Cutrofello did not deviate from accepted standards of medical care, is sufficient to meet defendant's burden as a proponent of a summary judgment motion (see Alvarez v Prospect Hosp., 68 NY2d 320 [1987]; Berger v Becker, 272 AD2d 565 [2001]; Juba [*3]v Bachman, 255 AD2d 492 [1998]; Whalen v Victory Memorial Hosp., 187 AD2d 503 [1983]).

The burden now shifts to plaintiff to respond with rebutting medical evidence demonstrating that defendant's actions were a departure from the accepted standard of care in the medical community (see Alvarez v Prospect Hosp., supra; Whalen v Victory Memorial Hosp., supra) and a proximate cause in bringing about the injury (see Mortensen v Memorial Hosp., 105 AD2d 151 [1985]). In opposition to defendant's motion, plaintiff submits the affirmation of a medical expert, Edward Moss, M.D., a urologist, who opines that defendant Cutrofello departed from good and accepted standards of medical practice in ordering a percutaneous nephrostomy performed upon plaintiff which resulted in the removal of her left kidney. Thus, plaintiff's expert's affirmation raises questions of fact involving the issues of malpractice and proximate cause as to whether plaintiff suffered injury due to the treatment she received from Dr. Cutrofello (see Sisko v New York Hosp., 231 AD2d 420 [1998]; Evans v Holleran, 198 AD2d 472 [1994]).

In support of his motion for summary judgment, Dr. Zargaroff submits the affirmations of medical expert Robert C. Wallach, M.D., a gynecologist, and John W. Coleman, M.D., a urologist, who conclude that defendant Zargaroff did not depart from good and accepted standards of medical practice with respect to his treatment of plaintiff and that he did not contribute to or proximately cause her injuries. This evidentiary submission, which indicates that defendant Zargaroff did not deviate from accepted standards of medical care, is sufficient to meet defendant's burden as a proponent of a summary judgment motion (see Alvarez v Prospect Hosp., supra; Berger v Becker, supra; Juba v Bachman, supra; Whalen v Victory Memorial Hosp., supra).

The burden now shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Eisen v John T. Mather Memorial Hosp., 278 AD2d 272 [2000]; Kaplan v Hamilton Med. Assocs., 262 AD2d 609 [1999]) that the defendant departed from accepted medical practice, as well as a nexus between the alleged malpractice and the injury to the plaintiff (see Bertini v Columbia Presbyterian Med. Ctr., 279 AD2d 492 [2001]). Herein, plaintiff submits the affirmation of Douglas Phillips, M.D., a gynecologist. Plaintiff's expert's conclusory affirmation fails to address the assertions set forth in the expert affirmations submitted by defendant Zargaroff and fails to establish that any alleged departure was a proximate cause of the plaintiff's injury (see Mendez v City of New York, 295 AD2d 487 [2002]; Eisen v John T. Mather Memorial Hosp., supra; Kaplan v Hamilton Med. Assocs., supra).

Accordingly, the motion of defendant Cutrofello for summary judgment in his favor is denied; the cross motion of defendant Zargaroff for summary judgment in his favor is granted; the cross motion of defendant Hospital for summary judgment in its favor is granted on consent of plaintiffs; the cross motion of plaintiffs for leave to serve a second supplemental bill of particulars is granted. The actions against defendants Hospital and Zargaroff shall be severed from the remaining causes of action against defendant Cutrofello (CPLR 3212[e][1]). [*4]

Dated: September 15, 2004

J.S.C.