Kroslak v Chin

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Kroslak v Chin 2019 NY Slip Op 34543(U) February 4, 2019 Supreme Court, Dutchess County Docket Number: Index No. 52124/2016 Judge: Edward T. McLoughlin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: DUTCHESS COUNTY CLERK 02/04/2019 02:52 PM NYSCEF DOC. NO. 91 INDEX NO. 2016-52124 RECEIVED NYSCEF: 02/04/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF DUTCHESS ----------------------------------------------------------------------X RUSSELL J. KROSLAK and CYNTHIA A. KROSLAK, DECISION and ORDER Plaintiffs, - against - Index No. 52124/2016 SIMON CHIN, M.D., JANE BEDER.KA, R.N.F.A., CHRISTIE SACCO, M.D. and NORTHERN WESTCHESTER HOSPITAL, Defendants. ------------------------------------------------------------------------X McLOUGHLJN, EDWARD T., AJSC The following papers were considered on the motion of defendant Simon Chin, M .D. , made pursuant to made pursuant to CPLR §3212, seeking summary judgment and dismissal of the complaint as against the plaintiffs: Notice of Motion Attorney Affimrntion/Physician 's affidavit/Exhibits Af.finnation in Opposition/Physician ' s affidavit Reply Affim1ation In this action for medical malpractice, the plaintiff, Russel J. Kroslak, alleges that the defendant was negligent while performing suturing during a medical procedure. Specifically, the plaintiff alleges that the while the defendant was suturing the plaintiff, a portion of the suture needle broke off inside of the plaintiff, and that subsequent to this, the defendant failed to locate the needle piece prior to completing the surgery. It is further alleged that such action by the defendant necessitated an additional surgery to remove the piece of needle left inside the plaintiff. The plaintiff asserts that such actions did not confonn to the accepted standards of medical care resulting in personal injury and damage sustained by the plaintiff. -1- [* 1] 1 of 4 FILED: DUTCHESS COUNTY CLERK 02/04/2019 02:52 PM NYSCEF DOC. NO. 91 INDEX NO. 2016-52124 RECEIVED NYSCEF: 02/04/2019 ANALYSIS ln order to establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiffs injuries. On a motion for summary judgment, a defendant has the burden of establishing the absence of any departure from good and accepted medical practice or that the defendant was not injured thereby. Meade v. Yland, 140 AD3d 931 (2nd Dept. 2016). Where such a showing is made, the burden shifts to the plaintiff to produce evidentiary proof in admissible forn1 sufficient to rebut the prima facie showing and establish the existence of material issues of fact. Wixted v. Schoenfeld, 137 AD3d 1263 (2nd Dept. 2016). Not surprisingly, this case involves a battle of experts. Each side has presented affidavits to support their respective positions. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented. Issue finding, rather than issue detennination is the key to the procedure. Matter of Suffolk County Department of Social Services v. James M., 83 NY2d 178; Sillman v. 20thCentury Fox Film Corp., 3 NY2d 395. h1 making this determination, the Court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference which can be drawn from the evidence. Negri v. Stop & Shop, Inc ., 65 NY2d 625; Nash v. Port Washington Union Free School District, 83 AD3d 136 (2nd Dept. 2011). The moving party is entitled to summary judgment only if it tenders evidence sufficient to eliminate all material issues of fact from the case. Winegrad v. New York University Medical Center, 64 NY2d 851; Zuckerman v. City of New York, 49 NY2d 557. If a party makes a prim a facie showing of its entitlement to summary judgment, the opposing party bears the burden of -2- [* 2] 2 of 4 INDEX NO. 2016-52124 FILED: DUTCHESS COUNTY CLERK 02/04/2019 02:52 PM NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 02/04/2019 establishing the existence of a triable issue of fact. Alvarez v. Prospect Hospital, 68 NY2d 320. Here, in opposition, plaintiff raised triable issues of fact. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Elmes v. Yelon, 140 AD3d 1009 (2nd Dept. 2016); Guctas v. Pessolano, 132 AD3d 632 (2nd Dept. 2015). Conflicting expert opinions raise credibility issues which are to be resolved by the fact finder. Nisanov v. Khulpateea, 137 AD3d 1091 (2nd Dept. 2016). Given the identification of the issues, notably the issues of the differing opinions between the parties' experts, and the applicable law, the Court finds that this case must proceed to trial. Accordingly, it is hereby ORDERED, that the motion of the defendant, Simon Chin, M .D., made pursuant to CPLR §3212 for dismissal of the complaint, as against plaintiffs, is denied; and it is further The foregoing constitutes the decision and order of the Court. Dated: Poughkeecr New York February , 2019 H Justice Supreme Court -3- [* 3] 3 of 4 FILED: DUTCHESS COUNTY CLERK 02/04/2019 02:52 PM NYSCEF DOC. NO. 91 TO: RECEIVED NYSCEF: 02/04/2019 Mark M . Basichas & Associates, P.C. 233 Broadway, Suite 2707 New York, NY 10279 Adam T. Brown, Esq. Pilkington & Leggett, P.C. 222 Bloomingdale Road White Plains, NY l 0605 Wilson , Elser, Edelman, Moskowitz and Dicker, LLP 1133 Westchester Avenue White Plains, NY 10604 Voute, Lohrfink, Magro and McAndrew, LLP 170 Hamilton Avenue White Plains, NY 10601 -4- [* 4] INDEX NO. 2016-52124 4 of 4

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