Palazzolo v Schmitt

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Palazzolo v Schmitt 2020 NY Slip Op 35293(U) October 7, 2020 Supreme Court, Suffolk County Docket Number: Index No. 600412/2015 Judge: Joseph Farneti 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. INDEX NO. 600412/2015 FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 10/08/2020 SHORT FORM ORDER INDEX No. CAL. No. 600412/2015 --------- 19~00102MM SUPREMECOURT - STATEOFNEWYORK LA.S. PART 37 - SUFFOLK COUNTY PRESENT: Hon. -~JO=S=E=~P~f=IF~A=R=N'-"·E=T-=-=l=-·_ Acting Justice of the Supreme Court MOTlONDATE 6/19/19 (001) MOTION DATE 9/23/19 (002) AD.LDAt'E· 8/27/20 Mot. Seq. #•001 MG #002 XMD ------------------------------------. -- .----- .-- ·---. -----· -·X. TAMMY L. PALAZZOLO, SILBERSTEIN, A WAD & MILKOS, P .C. Attorney for Plaintiff 600 Old Country Road Garden City, New York 11530 Plaintiff; KERLEY.WALSH, MATERA & CINQUEMANI Attorney for Defendant Schmitt and East End Women's Healthcare, PC 2174 Jackson Avenue Seaford, New York l 1783 - against - GERI A. SCHMITT, M.D., EAST END AARONSONRAPPAPORT FEINSTEIN & WOMEN'S HEALTHCARE; P.C., MEDHAT DEUTSCH, LLP E. ALLAM, M.D., MEDHA-T E. ALLAM, M.D., P.C., EASTERN LONG ISLAND SURGERY, P~C.; SOUTHAMPTON HOSPITAL and THE SOUTHAMPTON HOSPITAL ASSOCIATION, Attorney for Defendants.Allam and Eastern Long Island Surgery 600 Third Avenue, 5th Floor New York New York 10016 Defendants, 1 BARTLETT LLP A ttomey for Defe11dants 320 Carleton Avenue, Suite 7500 Central Islip, New Yo.rk i f722 .:·: ·--. ·-------· -- ·-------- ·-· -· -------· ------ ·---. -· --------X .0pon thefol lowfog papers reaq on these e~filed. motion~ ·for summary. judgment.. to preclude : No.tice of tvlotion/ Order to Show Cause..and supporting papers filed by defendant Med hat E. Allam. M.D .• and .Eastern Long Is land Surgery; P.C ., on May 16, 20.19 ; Notice of Cross Motion and. supponing papers .filed by plaintiffron September 6.2019 ; Answering Affidavits rind supporting papers filed by defendant Southampton Hospital and The Southampton Hospital Association, on June 13, 2019: filed -------- [* 1] ······-···-··.................. - ....... _________________ 1 of 7 .__ ................. _....... _.......___..._.._,._....... · - - - - - - - FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 INDEX NO. 600412/2015 RECEIVED NYSCEF: 10/08/2020 Palazzolo v Schmitt Index No. 600412/2015 Page2 by plaintiff. on September 6. 2019; filed by deferidarits Geri A. Schmitt. M.D.. and EastEnd Women's.Healthcare. P.C., on September 16,20 19 ; ReplyingAffidavits and supportingpapers filed byplaintiff. on September 2 7, 2019; filed by defendants Medhat E. Allam, M.D., ·and Eastern Long Island Surgery; P,C. on October 7, 2019 ; Other_; (8tid 11Re1 hem iog ee,uu.'lel in 3ttppmLarid e,pposcd to the 11iatio1,) it is, · · · · ORDERED that the motion (#001) by defendants Medhat E. Allam, M.D., and Eastern Long Island Surgery, P. C., and the tnotion (#002) by plaintiffTammy L. Palazzolo are consolidated for the purposes ofthis determination; and it is further · ORDEREDthatthe motion by defendants Medhat E. Allairi., M.D., and Eastern Long Island Surgery, P.C., for summary judgment dismissing the complaint as asserted against them is granted; and itis further · ORDERED that the motion by plaintiff Tammy L. Palazzolo for an order precluding the application of CPLR Article 16 is denied. This is a medical malpractice action brought to recover damages for injuri.es alleged Iy arising from the treatment of plaintiffTarnmy L. Palazzolo by defendants Geri A. Schmitt, M.D., East End Women's Healthcare, P.C., Medhat E. Allam, M.n, MedhatE. Allam M.D., P.C., Eastern Long Island Surgery P.C. (''ELIS"), Southampton Hospital and The Southampton Hospital Association. With respect to the instant motions, plaintiff alleges, inter alia, that Dt. A1Iru11 and ELIS (collectively ''Dr. Al lam") negligently performed a hernia repair on her, causing injury to her bladder. Plaintiff asserts causes of action sounding in medicalmalptactice and lack of informed consent. The facts, as they relate to the instant motions; can be suimnarized as follows: on May 14, 2012, after experiencing abdominal pain, plaintiff was diagnosed with an ovarian cyst by Dr.Scarbrough of East End Women's care. Dr. Scarbrough then referred plaintiff to nort--party colorectal surgeon, Dt. Ruffo. Dr. Ruffo 6rdcrcd a CT scan ofplaihtiff's abdomen and pelvis, which revealed a small to moderate sized hiatal hernia. On or about May 22, 20 I 2, plaintiff returned to Dr. Scarborough, and, after consultation,. plaintiff opted to undergo a laparaoscopic, bilateral salpingo-oophorectomy with another OBGYN, Dr. Schmitt, as Dr. Scarbrough did not perform the procedure. On June 4, plaintiff was evaluated pre~ciperatively by Dr. Schmitt. Dr. Schmitt testified that she discussed the risks of the procedure, including the potential for bladder injury and the possibility ofconversion to an open laparatomy if plaintiff's abdominal adliesions were extensive. Dr. Schntitttestified that plaintiff acknowledged .the risks and chose to proceed. On.June 16~ Dr. Schmitt performed the laparaoscopic~ bilateraisalpingcH:mphorectomy at Southampton Hospital. During the procedure, Dr. Schmitt testified that piaintif:f's previously diagnosed hia.tal hernia was incarcerated, which could lead to.strangulation or obStru,ction. Dr. Schmitt t€lstifi€ld that this finding was a surgical emergency, and that she called for a surgical consult with Dr: Allarrt DL Allam responded to the operating room after plaintiff hac:I already been put :und~r general anesthesia, and after the surgery had begun. Dr. Allam performed lysis of plaintiff's abdominal adhesions and repaired the. incarcerated.incisional hernia. Dr. All.am utilized surgical me.sh and tacksta..secure the mesh.to ---··-"·------------·""-"·-·--·--·-....-..... _.... ....... ,_.. ..... ,_ .... [* 2] , , 2 of 7 FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 INDEX NO. 600412/2015 RECEIVED NYSCEF: 10/08/2020 Palazzolo v Schmitt Index No. 600412/2015 Page 3 plaintiffs abdominal wall. Dr. Allam noted that there were no complications and that her blood loss was minimal. After plaintiffs surgery was Completed; she contplained post-operatively ofabdominal pain, increased flatulence, and her blood in her urine. Dr. Schmitt suspected bladder perforation and ordered a CT cystograrn, which confirmed a bladder perforation. On July 17,. Dr. Allam, who was assisted by nonparty urologist Dr. Mukelwitz; performed a laparoscopic bladder perforation repair. Dr. Allain repaired the perforation with sutures and confinned the repair using Methylene blue saline fluid to test for leaks, and found none. On July 20, plaintiffwas discharged from Southampton Hospital. Dr. Allam and ELIS now move tor summary judgment dismissing the complaint as asserted against them, arguing that Dr. Allam did not deviate or depart from the applicable standard of carein his surgical and post-operative care of plaintiff, or, that if there was a deviation or departure, that it was not the proximate cause of plaintiffs allegedinjuries. Dr. Allam further argues that; as a physician who was caUed to consult plaintiffs attending gynecologist intra.operatively, he did not have a duty to obtairiher informed consent, as she Was unconscious and because the procedure was emergent. In support ofhis motion, Dr. Allam submits, inter alia; the affirmation· of George Denoto, M.D., portions of the transcripts of the depositions of plaintiff,Dr. Sclimitt, Dr. Allam, and Dr. Scarbrough, and portions of plaintiffs uncertified medical records from East End Women's Care, ELIS, and Southampton Hospital. Plaintiff opposes the motion, arguing that questions of fact exist with respect to whether Dr. Allam deviated or departed from the applicable standard of care in his treatment of her, and with respect to the proximate cause of her injuries. Plaintiff does not oppose Dr. Allam' s motion for summary judgment on the cause ofaction for lack of informed consent. Plaintiff submits, inter alia, the affirmation ofa pllysician, the transcripts.ofthe deposition testimony ofplainitff, DL Allam, and Dr. Schmitt, and plaintiffs medical records. Initially, the Court notes that while Dr. Allam has submitted uncertified copies of plaintiff's medical records; plaintiff does not challenge their admissibility and references their contents in opposition. Since there is no prejudice to any substantial right of the plaintiffs by the lack of certification, the records will be considered admissible (Mattei' of Robert E. Havell Revocable Trust v Zoning Bd. o/Appeals o/Vil.. o/Monroe, 127AD3d 1095, 8 NYS3d 353 [2d Dept 2015]; see CPLR 2001). Additionally, in civil cases, "inadmissible hearsay admitted without objection may be considered and given such probative value as, ·under the circumstances, itmay possess" (Rosenblatt v St;, George Health & Racquetball As5J}c.,L.LC, 1 l9.AD3d 45~ 54) 984 NYS2d 4Ql [2dI)ept 2014]; see,4/faro v Layacca, _ AD3d _, 2020 NY Slip Op 05173 [2dDept 2020]). As healthcare providers, doctors and hospitals owe a duty of re.asonab le care to their patients Whiie rendering medical treatment, and a breach of this duty constitutes medical malpractice (see. 1)11pree v .Giugliano~ 20 NY3d 921, 924, 958 NYS2d 3.(2, ~ 14 [2012]; Scptt v Clljanov, 74 NY2d 673, 67 5; 543 N YS2d 3 69 [1989]; Tracy v VasstJr Bros~ H.o.sp., 13 0 AD3 d 713 i 715; 13 NYS 3d 2261 2 88 [2d Dept 2015] ). To recover damages for .medical malpractice; a plaintiff patient must prove both Hiat his or her .healthc.are provider devi.ated or departed from good and ~c_cepted sta1;1dards of medh:a:l practice; and that such departure proximately caused his or her injuries (see Gross v Friedman, 73 N Y2d 721, 535 [* 3] -----·----·------············-·····--·-----3 of 7 FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 INDEX NO. 600412/2015 RECEIVED NYSCEF: 10/08/2020 Palazzolo v Schmitt Index No. 600412/2015 Page 4 . .NYS2d 586 [1988]; Bo11giovan11i v :Cavagnuolo, 138 AD3d 12, 16, 24 NYS3d 689, 692 [2d Dept 2016]; Stuklis v Streiter; 83 AD3d 18, 23,918 NYS2d 176 [2d Dept 2011]). To establish his or her entitlement to summary judgment in a Ihedicttl malpractice action, a defendanthealthcate provider must.prove, through medical records.and competent expert affidavits, the absence of any such departure, or, if there was a departure, thatthe plaintiff was not injured as a result (see Bmrgiovanni v Cavagnuolo, supra; Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819, 982 NYS2d 361 [2d Dept20l4]; Faccio v Golub, 91 ADJd 817, 938 NYS2d 105 [2d Dept2012]). To sustain. this burden, the defendant must address artd rebut any specific allegations of malpracfo::e set forth in the plaintiff's bill of particulars (see Schuck v Stony Brook Surgical Assoc~, 140 AD3d 725, 33 NYS3d 369 [2dDept2016]; Seidet1v Sonsteili, 127 AD3d'l 158,7NYS3d565 [2d Dept 2015]; Lorntel v Macura, ll3AD3d 734,979 NYS2d345 [2d Dept 2014]). Ifsuch a showing is made, the bµrden then shifts to the plaintiff to submit evidentiary facts or materials in rebuttal, but only as to those elements ort which the defendant niethis other primafacie burden (see Keesler v Small, 140 AD3d 1021, JS NYS3d 356 [2d Dept2016]; Abakpa vMartili, 132 AD3d 924, l9NYS3d 303 [2d Dept 2015]; Wi(liams v Bayley Seton Hosp., 112 AD3d 917, 977 NYS2d 395 [2d Dept 2013]; Stukas v Streiter; Slipra}. Although contlicti11g expert opinions may raise credibility issues: which can only beresolved by ajury, expert opinions that ate conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact in a medical malpractice action (see Wagner v Parker, 172 AD3d 954, l0ONYS3d 280 [2d Dept 2019]; Bowe v Brooklyn UnitedMetltodist Church Home, l50AD3d 1067, 1068 [2d Dept 2017]; Kerrins vSouth Nassau Communities Hosp., 148 AD3d 795, 796 [2d Dept 2017]). Dr. Allam has established,.primafacie, entitlement to surnmaryjudg:rnentdismissingthe complaint as asserted against him. Dr: Allan1 submits the affirmation ofGeorge Denoto, M.D., who avers that he is licensed to practice• medicine in New York State. and that he is board certified. ih surgery. Dr. Denoto states that he is fully familiar with the standards Of care as they existed in 2012 with respect to general Surgery and the performance of hiataL hernia repair and salpingo-oophorectomies. Dr. Denoto opines, within a reasonable degree of.medical certainty, that Dr. Allrun a:nd ELIS comported with the applicable standard ofcare at all times with respect to the treatment provided to plaintiff Further; Dr. Denoto opines, within a reasonable degree of medical certainty, that no action or inaction Ort the part of Dr. Allam or ELIS caused plaintiffs alleged injuries. Dr. Den0toopines that Dr. Allam properly· performed _plaintiff's July 16, 2012 hernia repair and adhesion takedown surgery properly. Dr. Denote opines that it was proper for Dr. Allam to utilize mesh and Absorba Tacks, and that such use was within the standard ofcare in 2012. Dr. Denoto opines that bladder perforation was a ''weJl.,.known" risk of the that·Dr. Sch~itt properly informed plaintiff of this risk. Dr .. Detioto· states hernia repair procedure, that a bladder perforation, in. and of itself, cfoes tiot constitute a departure from the standard of care.. Dr. Deno to opines that there was no· indication of bladder injury during the procedure itse1 f, and states that intraoperatively, the standard. of .care did not requite a surgeon to test for bhidcler injury . . if there Was no irtdicatiort of injUf)'; and With respect to the July 17,2012 bladder repair, Dr. Denote opines, within a reasonable degree of med1cal certainty, that Dr, Allam '.s repair of plaintiffs bladder perforation comported with the standard of care. Dr. Denoto states that Dr. Allam pro:perly sutured the perforation. checked the repair ---·------···-···-···-···---·······--------------------4 of 7 [* 4] FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 INDEX NO. 600412/2015 RECEIVED NYSCEF: 10/08/2020 Palazzolo v Schmitt Index No. 600412/2015 Page5 with Methylene blue saline, and ensured there was no leak. Further, Dr; I>enoto opines, within a reasonable degree of medical certainty, that the post..;operative care provided to plaintiff by Dr. Allam was proper. Dr: Denoto states that plaintiff did not experience any complications post-operatively, and thatplaintiffwas also followed by a urologist, Dr. Munkelwitz. Dr. Denoto opines that it was proper for Dr. Allam to rely on the expertise ofa urologist. Dr. Denoto also notes that plaintiff denied any Iiew complaints to either Dr. Allam or Dr. Mµnkelwitz post-operatively, · · Dr. Denoto opines, within a reasonable degree of medical certainty; that the care ::lnd treatment provided by Dr. Allam did. not proximately cause plaintiffs alleged injuries. Dr. Denoto states that bladder perforation is a known risk of hernia repair surgery. Dr. Denoto further explains that surgical mesh erosion is a known risk, and erosion does not reflect a departure from the standard of care. Dr. Denoto also notes that plailltiff denied dysuria, urinary frequency, and significant hematuria when she was seen bi Dr; Munkelwitz on September 17, 2012. · With respectto plaintiffs cause of action for lack of informed consent, lack ofinformed consent "is a distinct cause of action which requires proof of facts not contemplated by an action based merely onallegations of negligence" (Kleinman vNotth Sl,ore·Univ. Hosp., 148AD3d 693,694, 48NYS3d 455 [2dDept2017]; see Public Health Law§ 2805-d). To establish a claim for medical malpractice based oh lack of informed consent, a plaintiff must establish: (1) that the physician failed to disclose the reasonably foreseeable risks, benefits; and alternatives to the procedure that a physician ih asimilar circumstance would have disclosed; (2) that a reasonably prudent personin the plaintiff's position would not have undergone the procedure ifhe or she had been fully informed of the reasonable foreseeable risks, benefits, and alternatives to the procedure; and (3) that the lack of informed consent is a proximate cause ofthe injury sustained (see Public Health Law§ 2805-d[l];·Orphan v Pilnik, 15 NY3d.907, 914 NYS2d 729 [201 OJ; Lynn G. v Hugo James v Greenb_erg, 96 NY2d306, 728 NYS2d 121 [2001]; Gilmore v Mihail, 174 ADJd 686,105 NYS3d 504 [2dDept2dl9]; Wright v Morning Stat Ambulette Servs., Inc., 170 AD3d 1249, 96 NYS3d 678 [2d Dept 2019]). It is the obligationofa patient's priv'ate physician to obtain informed consent (see Pu:blic Health Law§ 2805-d [l]; Cynamon v MouutSinai Hosp., 163 AD3d 923,.81 NYS3d 520 [2d Dept2018]; Sela v Katz, supra; SalandyvBryk, 55 AD3d 147., 864 NYS2d 48 [2d Dept 2008]; Cirellirv Central Gen. Hosp~, 217 AD2d 680,630 NYS2d 93 [2d Dept 1995]). Here, Dr. Allam submits the affirmation of Dr. Denoto. Dr. Denoto opines that Dr. Schmitt:. as plaintiffs physician, had the duty to obtain her infor111ed consent prior to the July 16 surgery. Dr. Denoto notes that Dr~ Allam was not consulted by Dt. Sdimitt, and did not arrive to the Operating rooin, until after the surgery had comITienced andpla10tiffwas under anesthesia. Further, Dr.. Denoto ·states that plaintiff's incarcerat¢d hernia, discovered inttaoperatively, was a surgfoal emergency requiting immediate treatment. Dr.. Deno.to opfo:es that, as plaintiff had previousiy beeri infoi"riled of, and consented to; additicmal procedures if complications arose, and. because the· hernia repair was emergent, the informed consent was proper. Dr~ Allam having met hi$ primafacie burde11 on the motion for !;llril,tnaty judgment disrnissing the cause of action for medical. malpractice, the burden now shifts to plaintiff to raise a triable issue of fact necessitating a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, .508 NYS2d 923 [1986]; Siiso v Berfilt, 17.6 Ab3d 88,8, 110 NYS3d 139 [2d Dept 2019];Stukas v Streiter,;tupra). Plaintiffsubmitsthe. __________ __ [* 5] ,, _, . ,.,,... _, ....,, ...... _, ............ --------------····-············--···· . ·-······················· - - - - - - - - - - 5 of 7 FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 INDEX NO. 600412/2015 RECEIVED NYSCEF: 10/08/2020 Palazzolo v Schmitt Inde.x No. -600412/2015 Page 6-" affirmation ofa physician, who avers that he or she is Hcensed to practice medicinein NewYorkand New Jerset However, as plaintiffs expert fails to lay any foµndation for his or hei: opinion that Dr. Allam departed or deviated from good and accepted pra<::tice in her treatment of the plaintiff, such as his specialty, training, or experience; his opinion as to any deviatio11 or departure i~ n()t reliable (see Matott v Ward. 48.NY2d 455,459,423 NYS2d 645 [1979];._Galluccio v Grossman, 1-61 AP3d-1049, 78 NYS3d 196 [2d Dept 2018]; _cJ Sc/1n#tt v Medford Kidney._Center, 121 AD3d_ 1088, 9·96--NY:Sid 75 [2d Dept 2014]). Further, plaintiffs- expert fails to identify· o_r define the applicable, sta,nd~rd. of care wider· the-circumstances, rendering,his opinion speculative and coµclusory (see Schmitt v·Medford ~id;,ey Ctr._, supra; D_eLaurentis v Orange Regional Med. C~nter-Horton Campus, 117 Aind 774, 985 NYS2d 709 [2d Dept 2014]): As plaintiffs expert's affirrmitio.n lacks any prol:>'1tive value, it is insufficient to raise any triable issues of fact(see Wagner v Parker, supra; Bowe v Brooklyn United MetltodistC/iurch Home, supra; Kerrins vSouth Nassau Comn,unitiesHosp;, supra). Moreover, the affitniation of an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is ins.ufficientto raise-a.triable issue offact (see-,ZucicermanvCityof New :York-, 49 NY2d 557, 427 NYS-2d '5_95 [ 1980]). A$ the· pl_ai_ntiff' s submissions fail to. present admissible .evidence of any departures-or deviations frcnn good and accepted practice, :s,l1e f~ils to rebut Dr.. j\llalJ:i's.prfmafacie showing of.entitlement to sUiilmary judgment (see Matott ·v ·Ward, sufird~ Wagner v Parker, .vupra; Delaurentis vOrange Regi<ma/Med. Center-:liorttm Camp,,s, supra). Therefore~ Dr. Allamand ELIS's motion·for suniiilary judgment dismissing thecomplairit as asserted against them·is granted. Plaintiff cross-move~r for an Order precluding any .defendant from obtaining the limited liability benefits of Article 16 in relation to the-acts or omissions of a defenclant granted summary judgment dismissing ·plaintiff's complaint against him, her, o:r it. Plaintiff argues that by failing ·to oppose Dr. All~m _and. ELIS's motion for summary judgmen.t, the remaining.:defendants·shotild be·precludeclfrom as·sertit:ig.·.an Artic1¢ 16 defense _at trial, Dr. Schmitt and·East .End Wome11's Healthcare-oppose tqe ·motion, arguing that the cross motion fa premature and that it. is prejudicial for plaintiff to seek to pri:iclude rights of the defenriants in this action as expert disciosure has not been completed.. CPLR 160 I "modifies· the common-law rule· of joint and several liability by making a joint ttn1feasor whose share offauit is 50% or less Hable for plaintiff~ non-economic lqss only to the extent of that tortfeasor's.share of the total non,.economic loss (Chianese v Meier, 98 NY2d 270,275, 746 NYS24 657 [2002]; see Rangolim v Couniy ofNas$all, 96 NY~d 42, 725 NYS2d 611 [;WO 1]; Jiendrickso11 v Pl,ilhor Motors,_ Inc., l 02 AD3d 251., 955 NYS2d 384 [2d Dept- 2012]_; Marsala v Weinraub, 20"8 AD2d (i89, 61 TNYS2d. 809 [2d I>.ept 1:-994]). Thus, ·~Iow-faµlt tortfeasors.-are liable onlyfor their actual as·sessed share of responsibility, rather than the foll amoupt of plaintiffs non-econom_ic loss"(Cl,ianese v Meier 1 supra at 275). H~wever, Whert a codefertdant is dismissed from an action.as the resultofa supunary judgment motion,a remaining defendant has no basis for seeking Article 16 apportionment ofliability with respect to the dismissed codefendant Nevertheless, the motion is denied. The statutory right of apportionment must be proved by the party asserting such defense adhe time of trial. The assertion of an Article 16 defense does not shift to a defendantc:ta:i;ming such a.defense the bur-den of establtshin.g ti1e,.-negligence of a codefendant seeking summary judgment (s'ee CPLR 1603:;_ ·Marsala v Weinrq:ub,.-208. AD2d 689, 617NYS.24 $09 [2dPept 1994]). ·Further, ''equityreqtiires.that the defendants. have the =.benefit of their rights under-:CPLR Article· 16, such that if their culp·ability-·is [* 6] - - - ·-------------m..,,.,....,_...,..,..,,,w•=···~-~ 6 of 7 INDEX NO. 600412/2015 FILED: SUFFOLK COUNTY CLERK 10/08/2020 10:07 AM NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 10/08/2020 Palazzolo V Schmitt Index No. 600412/2015 Page7 50% or less, their exposuure for economic damages should be limited proportionately to their share of fault (Moy v St. Vincent's Ilosp. &: Med. C:tr. o/N. Y., 92 AD3d 65J, 652, 938 NYS2d 328 [2d Dept 2012]; see CPLR 1'601 [1]). Accordingly, the. motion by Dr. Allam and ELIS for summary judgment in their favor dismissing· the complaint is granted, and the cross motion ofplaintiffto preclude any remaining defendantfro111 asserting an Article 16 defense at tri1:U is denied. Dated: October 7, 2020 FINAL DISPOSITION X NON-FINAL DISPOSITION ----·--·-·-··-····--················-·-·-·-···-·-··--············-···-·-----------------"· ... .. -. ........... ·············-···· ················---------7 of 7 [* 7] •

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