Winslow v Syed

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Winslow v Syed 2021 NY Slip Op 33230(U) April 20, 2021 Supreme Court, Dutchess County Docket Number: Index No. 51731/17 Judge: Maria G. Rosa 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. 2017-51731 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 RECEIVED NYSCEF: 04/20/2021 j' SUPREME COURT OF THE THE STATE NEW YORK YORK SUPREME COURT STATE OF NEW COUNTY OF DUTCHESS DUTCHESS COUNTY Present: Present: Rosa, Justice Hon. Maria Maria G. Rosa, Justice ANTHONY WINSLOW WINSLOW and DEBORAH DEBORAH WINSLOW, WINSLOW, ANTHONY Plaintiffs, Plaintiffs, ORDER DECISION AND AND ORDER DECISION Index No. 51731/17 51731/17 Index -against-againstOMAR MARSHALL PERIS, PERIS, M.D., M.D., OMAR N. SYED, SYED, M.D., M.D., MARSHALL and THE AT POUGHKEEPSIE POUGHKEEPSIE CENTER CENTER FOR FOR THE PINES PINES AT NURSING AND REHABILITATION, NURSING AND REHABILITATION, Defendants. Defendants. The following were read on Defendants' Defendants' motions motions for summary summary judgment. judgment. following papers papers were . NOTICE MOTION NOTICE OF MOTION AFFIRMATION IN SUPPORT SUPPORT AFFIRMATION EXHIBITS EXHIBITS A - 00 NOTICE OF MOTION NOTICE MOTION AFFIRMATION SUPPORT AFFIRMATION IN SUPPORT EXHIBITS EXHIBITS A - 00 AFFIRMATION OPPOSITION AFFIRMATION IN OPPOSITION EXHIBITS A - B EXHIBITS AFFIRMATION IN OPPOSITION OPPOSITION AFFIRMATION EXHIBITS A - R EXHIBITS REPLY AFFIRMATION REPLY AFFIRMATION EXHIBIT EXHIBIT A REPLY AFFIRMATION AFFIRMATION REPLY EXHIBIT A EXHIBIT - I This is medical medical malpractice malpractice and and negligence negligence action. action. On February February 2, 2,2015 Defendant Doctors Doctors This 2015 Defendant Omar Syed Syed and Marshall Marshall Peris Peris performed performed decompression decompression and fusion fusion surgery surgery on on Plaintiff's vertebrae Omar Plaintiff's vertebrae and L5-S 1. Plaintiff Plaintiff was was discharged discharged from from Northern Westchester Hospital Hospital to the the Defendant Defendant at L4-L5 and Northern Westchester The Pines Pines at Poughkeepsie Poughkeepsie Center Center for Nursing Nursing and Rehabilitation Rehabilitation ("The ("The Pines") Pines") on February February 10, The I I I ' [* 1] 1 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 following day back. The lower back. his lower pain in his 2015. 17,2015 severe pain The following reported severe Plaintiff reported 2015 Plaintiff February 17, 2015. On February revision performed revision Peris performed and Dr. Peris Dr. Syed examined Plaintiff Syed and 2015 Dr. Syed February 19, 2015 and on February Plaintiff and Syed examined connection in care of standards accepted from deviated from accepted standards of care connection surgery. Plaintiff alleges that Defendants deviated that the Defendants Plaintiff alleges surgery. move Defendants move thereafter. Defendants rendered thereafter. with services rendered rehabilitation services and rehabilitation surgery and 2, 2015 .surgery February 2,2015 the February with the judgment. for summary summary judgment. tendering burden of initial burden The proponent of a motion motion for summary summary judgment carries the the initial of tendering judgment carries proponent of The matter of a as fact issue of material issue sufficient admissible of a material of matter of absence of the absence demonstrate the evidence to demonstrate admissible evidence sufficient threshold this met has movant a If (1986). 324 law. Alvarez v. Prospect Hospital, NY2d 320, 324 (1986). If movant has met this threshold NY2d 68 Hospital, Prospect Alvarez triable issue present the existence must present burden, existence of of a triable issue of of fact. party must opposing party motion the opposing defeat the motion burden, to defeat summary for summary motion for deciding a motion See Zuckerman Zuckerman v. New (1980). In deciding NY2d 557, 562 (1980). York, 49 NY2d New York, may be which inference every motion every inference which may judgment, "the trial court must afford the opposing the motion pruiy opposing the party must afford trial court judgment, "the the favorable to the considered favorable must be considered facts must the facts properly and the presented, and the facts presented, from the drawn from properly drawn dant action,adefen malpractice medical malpractice action, a defendant nonmo\rant." Szczerbiak v. Pilat, 90 NY2d 553 (1997). (1997). Ina In a medical Pilat, 90NY2d553 nonmo\rant." Szczerbiak law by of law matter of judgment as a matter entitlement physician demonstrates a prima facie showing of an entitlement to judgment of showing facie prima demonstrates physician community accepted from depart or deviate not deviate submitting sufficient that he or she did depart from accepted community did not proof that sufficient proof submitting injuries. See plaintiffss injuries. the plaintiff of the cause of standards of proximate cause not a proximate departure is not that any departure practice or that of practice standards nd nd 2020). Dept (2 Rosenthal v. Alexander, AD3d 826 Dept 2020). Alexander, 180 AD3d Rosenthal submitted copies have submitted Peris have Drs. Syed In support support of of their their motion Syed and Peris copies judgment, Drs. summary judgment, motion for summary The affirmation. records and medical records of the pleadings, deposition transcripts, and an expert expert affirmation. The Plaintiff'ss medical transcripts, Plaintiff pleadings, deposition of he 2008 he problems. In 2008 back problems. lower back of lower history of foregoing establishes that extensive history had an extensive Plaintiff had that Plaintiff foregoing establishes surgery that performed who 2013 the doctor underwent laminectomy at L5 and S1. 1. In 2013 doctor who performed that surgery underwent a laminectomy orthopedic from an orthopedic opinion from second opinion recommended Plaintiffhave fusion surgery. Plaintiff obtained a second obtained Plaintiff surgery. fusion have Plaintiff recommended December in Syed Dr. consulted then spinal surgeon surgeon who Plaintiff then consulted Syed December 2014. 20 14. surgery. Plaintiff recommended surgery. who also recommended spinal lumbar transforaminal lumbar two-level transforaminal Following Syed recommended recommended a two-level examination, Dr. Syed physical examination, Following a physical spinal cord decompression of involved a decompression interbody fusion fusion at L4-L5 and and L5-Sl. of the the spinal cord in surgery involved The surgery LS-SI. The interbody performed the Peris performed 2015 Dr. Peris February 2, 2015 addition to fusion fusion achieved achieved by using On February bone graft. On using a bone addition procedure the procedure complications with were no complications There were decompressionn and Dr. Syed Syed performed with the fusion. There the fusion. performed the decompressio and walk and shower was able Plaintiff was significant pain surgery Plaintiff able to walk shower After the surgery relief. After pain relief. reported significant Plaintiff reported and Plaintiff physical post-surgical Pines on his own. On February 10,2015 Plaintiff was transferred to the Pines for post-surgical physical transferred was Plaintiff February 10, 2015 surgery the surgery installed during hardware installed the hardware therapy. scan conducted conducted prior showed the during the discharge showed prior to discharge therapy. A CT scan migration. without migration. good position position without was in good of administration of the administration ordered the Upon physician ordered attending physician Plaintiffss attending Pines, Plaintiff the Pines, admission to the Upon admission therapy physical A bed. of out when brace when out of bed. of a brace pain spinal precautions physical therapy use of and the use precautions and medications, spinal pain medications, included devised included plan devised care plan treatment care The treatment 2015. The initial 11,2015. February 11, performed on February was performed evaluation was initial evaluation physical and therapy, manual ice/heat, training, gait therapeutic exercises, neurological re-education, training, ice/heat, manual therapy, and physical therapeutic exercises, neurological re-education, weeks. week for six weeks. therapy sessions five to six days per per week therapy sessions session. He therapy session. physical therapy 2015, Plaintiff morning physical participated in a morning Plaintiff participated February 17, 2015, On February walking some walking of some exception of the exception with the body with upper body testified at his deposition involved only only his upper that it involved deposition that testified alert, was Plaintiff that reported that Plaintiff was alert, day reported that day with chart from 11:31 II :31 a.m. that note in his chaii walker. A note with a walker. was pain. He was back pain. of back complaining of but complaining orientated, steady gait gait but with a steady walker with with a walker ambulating with orientated, ambulating 2 [* 2] 2 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 that p.m. states from 12:22 note from administered oxycontin oxycontin at 9:00 9:00 a.m. and and again again at 10:15 a.m. A note 12:22 p.m. states that administered pain. the pain. for the Valium for taking Valium was taking and was back pain, Plaintiff pain, and insomnia due to back of insomnia complaining of was complaining Plaintiff was transported employee Pines' p.m. :00 3 and p.m. Plaintiff stated at his deposition that between 2:00 p.m. and p.m. a Pines' employee transported :00 2 deposition that between Plaintiff stated being was being why he was about why confused about was confused that he was him asserted that the first floor. He asserted wheelchair to the him by wheelchair Plaintiff asserts therapy. Plaintiff had therapy. usually had which he usually brought different room asserts than the one in which room than therapy in a different brought to therapy and session group a others in group session and with others line with get in line that told to get wheelchair, told of his wheelchair, out of taken out then taken was then that he was repeatedly instructed to do three of genie genie squats squats with squats in each each set. He claims claims he repeatedly twelve squats with twelve three sets of instructed was but was squats these perform was supposed informed supposed to perform these squats but believe he was not believe that he did not therapist that the therapist informed the his chest against his advised they they were were appropriate. appropriate. He stated stated a genie genie squat squat involved involved crossing crossing his arms arms against chest advised way half going by squats of sets two first and squatting squatting down. two of squats going half way that he did the maintains that Plaintiff maintains down. Plaintiff until severe until more severe became more pain gradually that the pain down but but they they caused caused him great great pain. asserts that gradually became pain. He asserts down placed then therapist a that claims pain. he heard a pop in his back which caused excruciating pain. He claims that therapist then placed back which caused excruciating heard pop Plaintiff hall. Plaintiff the hall. down the walk down him to walk what instructed him and instructed waist and around his waist strap around tow strap described as a tow what he described wheelchair. a placed being recalled next and out contends that after taking a few steps he blacked and next recalled being placed in wheelchair. steps blacked contends that after taking of complaining of was complaining Plaintiff was therapy Plaintiff physical therapy A note after physical that after states that p.m. states from 5: 18 p.m. chart from his chart note in his knee. behind his left knee. and behind left leg and sudden pain his left back, in his pain in his back, sudden underwent Dr. Syed examined Plaintiff Plaintiff the following Prior to the the examination examination Plaintiff Plaintiff underwent following day. Prior Syed examined left the that noted x-rays and noted that the left L4 screw a CT scan scan and x-rays. scan and and x-rays screw the CT scan viewed the x-rays. Dr. Syed viewed was surgery revision that determined He endplate. appeared to be toggling upwards into the superior endplate. determined that revision surgery was superior into upwards toggling appeared removal involved It 2015. February 19, necessary. surgery on February 19,2015. involved removal of of that surgery performed that Peris performed necessary. He and Dr. Peris segmental posterior and fusion hardware L4, placement of L5 pedicle screws, a posterolateral fusion and posterior segmental posterolateral screws, pedicle of placement at hardware hospital on the hospital was discharged Plaintiff was 1. Plaintiff fixation laminectomy at L4, L5 and S S1. discharged from the LS and revision laminectomy with revision fixation with 23, 2015. February February 23,2015. Houten, a specialist John Houten, of Dr. John Dr. Syed Syed and specialist in affirmation of submitted an affirmation have submitted Peris have and Dr. Peris pleadings records, the Plaintiff's medical neurosurgery of the spine spine and and brain. Houten reviewed reviewed Plaintiffs medical records, the pleadings brain. Dr. Houten neurosurgery of accepted from deviate not deviate from accepted did not Peris did and Peris and deposition Syed and Ors. Syed that Drs. concludes that and concludes testimony and deposition testimony did they did standards of of medical medical practice care and treatment of Plaintiff. Plaintiff. He further further opines opines that that they treatment of their care practice in their standards Dr. and history medical Plaintiff's medical history and not alleged injuries. Based on Plaintiffs injuries. Based Plaintiffs alleged cause Plaintiffs proximately cause not proximately performed a that Dr. Syed states that Houten Syed's December 2014 evaluation of Plaintiff, Dr. Houten states Syed performed Plaintiff, of evaluation 2014 14, Syed's December interbody lumbar l transforamina proper assessment, properly fusion recommended transforaminallumbar interbody fusion properly recommended pre-operative assessment, proper pre-operative degeneration. and movement further surgery to decompress and restabilize the spine and prevent further movement and degeneration. prevent and spine the restabilize and decompress surgery Drs. Syed that Drs. records, he further Based deposition testimony further concludes concludes that Syed and Plaintiffs records, testimony and Plaintiffs Based on the deposition well was well notes it was He notes surgery. He the surgery. performing the Peris surgical standards standards of care in performing of care from surgical deviate from not deviate Peris did not and L4 at construct the of top the at screws pedicle within the standard of care for the placement of pedicle screws the top of the construct and of placement standard of within and placed properly placed and Peris properly and Peris Ors. Syed bottom Syed and that Drs. opines that further opines construct at S 1. He further the construct of the bottom of proper operating room attached the screws. screws. He notes scan in the operating room confirmed confirmed proper post-surgery CT scan that a post-surgery notes that attached operating an of role of the role not the that it is not placement screws post-surgery. states that operating spine spine Houten states post-surgery. Dr. Houten the screws of the placement of posta that therapy physical of types the surgeon to instruct experienced physical therapists the types of physical therapy that postin therapists physical instruct experienced surgeon the of loosening the that further concludes operative spinal spinal fusion fusion patient should perform. concludes that the loosening of the perform. He further patient should operative warranted was warranted surgery was revision surgery that revision pedicle screws screws at L4 was and that placement and improper placement not due to improper was not pedicle that concludes he Finally, upward. based CT scan scan and x-ray showing showing the left screw toggling concludes that toggling upward. Finally, left L4 screw based on a CT applicable standards with applicable accordance with Drs. Syed Syed and Peris surgery in accordance standards revision surgery performed the revision timely performed Peris timely 3 [* 3] 3 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 entitlement to prima.facie entitlement Peris' primafacie and Peris' Drs. Syed of Syed and demonstrate Drs. sufficient to demonstrate foregoing is sufficient The foregoing care. The of care. not deviate they did that they summary judgment. They have competent evidence evidence that did not deviate from from produced competent have produced judgment. They summary Plaintiffs of factor causal a not was treatment was not causal factor of Plaintiffs rendering their treatment that their and that treatment and medical treatment accepted medical rendering accepted alleged injuries. inj uries. alleged premised on Peris is premised Plaintiffs' opposition opposition to the motion of of Drs. Drs. Syed Syed and and Peris on an affidavit affidavit of of Dr. the motion Plaintiffs' fusion and the fusion perform the determination to perform initial determination Jeffrey Dr. states that Syed's initial and Dr. Syccl's that Dr. Arie states Dr. Arle Arie. Jeffrey Arle. February the respect to the February 2. with respect deviations with decompression found no deviations he found and he warranted and was warranted surgery was decompressio n surgery 19. February 19, revision surgery the revision perform the 2015 surgery. He opines, however, decision to perform surgery on February the decision that the however, that He opines, 2015 surgery. that asserts He procedure. He asserts that and procedure. practice and 2015 medical practice of medical standards of accepted standards from accepted deviation from was a deviation 2015 was was that surgery suggesting history Plaintiffs in there was nothing the studies he reviewed or Plaintiffs history suggesting that surgery was or reviewed studies the in nothing there was claims. le I screw. IA the of movement of the L4 screw. lie claims. some movement necessary. appeared to be some there appeared that there acknov-:ledges that He acknowledges necessary. He cits neurological deli insl:1hility gross of ho\\'ever. that there \vas no f~nding examination of gross instlbility and/or and/or neurological dclicits examination on finding \Vas there that ho\vcver. producing competent a was surgery was competent producing re\·ision surgery warranting the re\'ision that the states that further stales He further surgery. I-Ie revision surgery. warranting revision cause of of the instability and and neurological dcficits Pl:1intilT11ow PlaintilTnow experiences. experiences. neurological deficits pain. instability the pain. cause an of an showing of facie showing prima facie Peris' prima and Peris' The foregoing Syed and Drs. Syed defeat Drs. insufficient to defeat foregoing is insufficient The deviated Defendants these that allege particular of entitlement to summary judgment. Plaintiffs' bills of particular allege that these Defendants deviated bills entitlement summary judgment. Plaintiffs· 2015 February 2. 2015 the February of the performance of their perfarmanee from with their connection with care in connection of care standards of accepted standards from accepted Plaintirrs spine. foiling to stabilize surgery. by failing assess PlaintifTpre-operatively. stabilize Plaintiff's spine. PlaintilTprc-o peratively. l~liling properly assess l[1iling to properly surgery. appropriately and appropriately timely and to timely failing to surgery, failing failing the surgery, used in the screws used the screws insert the and insert place and properly place failing to properly institute and studies diagnostic post-operatively assess Plaintiff, failing to perfarm diagnostic studies and to institute surgical surgical perform failing Plaintiff, post-operative ly assess nor Syed Dr. neither that states that neither Dr. Syed nor expert states Plaintiffs" expert intervention screws, Plaintiffs' these screws, of these loosening of address loosening intervention to address the February Dr. Peris committed malpractice connection with February 2.2015 2.2015 surgery. surgery. The The only only claimed claimed with the malpractice in connection Peris committed of theory a not was This revision surgery. the revision departure surgery. This was not theory of performing thc with performing connection with departure is in connection liability of liahility theory of /\ theory particular. A of particular. bills of malpractice asserted by PlaintilTs Plaintiffs in their their compli1int complaint or or bills malpractice asserted basis as serve not may judgment su111111ary ror asserted far thc lirst time in opposition to a motion for sumnlary judgment may not serve a hasis opposition lo motio11 asserted for the lirsl time 1 Plaintiffs· 2006). Plaintiffs' Dept 2(06). (2"' Dept 46] (2"" lar v. I~aker's 32 i\l),d A])3d 463 Varicl):. J::' Bah:er·s Variety. Pinn\'. Sec \linn motion See the motion. defeating the for defeating orliability theories the of any on orcarL' sta11dards cxpert does not allege a dcviation from accepted standards of carL' any of the theories ofliahility accepted from expert docs not allege de\'iatio11 on based on are hased asserted are malpractice asserted grounds for malpractice sole grounds alleged the sale /\s thc particular. As of particular. bills of Plaintiffs· bills alleged in Plaintiffs' the affirmation motion. the Defendants· motion. a new ofliability first timc opposition to Defendants' affirmation time in opposition the lirst for the raised lar liability raised theory of new theory the on the Based on motion. Based Defendants· motion. defeat Defendants' is insumcient fact to defeat or fact issue of material issue create a material insufficient to create laregoing, foregoing. it is ORDERED that the motion motion of'Dclendanls ofDefcndants. . Drs. Drs. Omar Omar Syed Syed and and Marshall Marshall Pcris Peris for summary summary that the ORDERED this of caption The granted. The caption of this action them is granted. against them judgment action cross-claims against and cross-claims claims and dismissing all claims judgment dismissing Defendants. Peris as Syed and is hereby hereby amended amended to remove remove Drs. and Peris as Defendants. Ors. Syed treatment and treatment medical and Plaintiff's medical on Plaintiffs The judgment is premised premised on summary _judgment for summary motion for Pines' motion The Pines' Diamond. Lawrence and Clements David records. deposition transcripts. expert affirmations amrmations of of Or. Dr. David Clements and Lawrence Diamond. transcripts. expert records. deposition that maintains that Pines maintains The Pines Weiner-Lashe r. The and Alison Weiner-Lasher. therapist Alison occupational therapist of occupational affidavit of expert afticlavit and an expert reasonable. ere \\ 2015 17. and IO the physical therapy services it provided bet\vcen February 10 and 17, 2015 \\ere reasonable. Fcbruar~' pro\'idcd bcl\vcen the physical therapy services particular. of particular. bills of Plaintiffs. bills cbirncd in Plaintiffs' appropriate injuries cbill1ed and injuries pain and contribute to the pain not contribute did not and did appropriate and treated pain ol'back history long a The expert anidavit of Or. Weiner-Lasher states that PlaintilThas long history orback pain treated Pliiintiffhas that states r Weiner-Lashe Dr. The expert anidavit of 4 [* 4] 4 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 his attending Pines his upon admission that upon with surgery and and physical admission to the Pines attending notes that therapy. She notes physical therapy. with surgery bed. His of bed. out of when out brace when of a brace use of the use and the physician precautions and spinal precautions medication, spinal pain medication, ordered pain physician ordered that back and that pertaining to his lower history pertaining medical history physical initial evaluation evaluation recounted lower back his medical recounted his therapy initial physical therapy that noted that examination noted An examination surgery. An 2, 2015 surgery. he was February 2,2015 prior to his February ambulation prior cane for ambulation using a cane was using gait antalgic an and walker rolling a with his balance was fair and his movement was deliberate with rolling walker and antalgic gait (a deliberate was movement balance was guard" required "contact Plaintiff required that Plaintiff note that way "contact guard" further note records further The records pain). The without pain). walk without way to walk treatment a treatment developed Pines The activities. (assistance by the physical therapist) functional activities. The Pines developed functional all for therapist) physical (assistance pain. back lower left and right and left lower back pain. decrease right plan balance and to decrease ambulation, balance mobility, ambulation, bed mobility, increase bed plan to increase week for six weeks. days a week The plan therapy five to six days weeks. physical therapy receive physical Plaintiff to receive was for Plaintiff plan was extremities lower his in pain severe of complaining of severe pain his lower extremities Plaintiff that he was complaining indicate that notes indicate treatment notes Plaintiffss treatment physical Plaintiffs physical result. Plaintiffs while at the Pines. Significant pain medication was was administered administered as a result. pain medication Pines. Significant while moderate to minimum needed Plaintiff 2015 therapy daily flow flow chart chart indicates moderate February 17, 2015 Plaintiff needed minimum that on February indicates that therapy daily indicates further walker. rolling with assistance with transfers and was able to walk sixty feet with a rolling walker. It further indicates sixty walk able was and transfers with assistance unit. A his returned was and ten of out eight Plaintiff made complaints of back pain at a level eight out of ten was returned to his unit. level Plaintiff made complaints of back pain therapy, physical therapy, concurrent physical had concurrent but had therapy but service group therapy had no group Plaintiff had indicates Plaintiff matrix indicates log matrix service log that he state records The time. same at which is two residents performing different exercises the same time. The records state that exercises which two residents performing different this that and that this therapy and training therapy gait training of gait minutes of nine minutes performed exercise, nine therapeutic exercise, of therapeutic minutes of eleven minutes performed eleven therapy session. physical therapy his physical was occasion he was completing his session. before completing unit before returned to the unit was returned not the first occasion was not extreme of complaining was complaining of extreme Plaintiff was note states Dr. Weiner-Lasher 17,2015 states Plaintiff 2015 note February 17, that a February notes that Weiner-Lasher notes pain Syed Dr. result, a As pain and numbness area down to result, Syed was was notified notified and and pain knee. down area hip left his to numbness pain medications administered. were administered. medications were Pines and upon arriving Dr. Weiner-Lasher opines that evaluated upon arriving at the Pines and properly evaluated was properly Plaintiff was that Plaintiff Weiner-Lasher opines pain the pain that the states that conservative. She and conservative. that She states thorough and was thorough plan was treatment plan therapy treatment physical therapy the physical that the February 2, 2015 the February result of was a result 2015 was Plaintiff experienced on the afternoon afternoon of of February 17,2015 of the 2015 February 17, Plaintiff experienced opinion this opinion of this basis of The basis 2015. The February 17, 2015. surgery received on February therapy received physical therapy due to any physical not due and not surgery and 2015. 17, February through surgery 2015 2, is Plaintiffs Plaintiff s complaints complaints of of pain dating his February 2,2015 surgery through February 17,2015. February from pain dating 2015 17, February on February 17,2015 therapy on physical therapy before his physical states that from before change from not change pain did not of pain level of that his level She states performed on February to after after that that therapy. furthers opines opines that that the physical therapy Plaintiff Plaintiff performed February physical therapy therapy. She furthers therapy physical Plaintiffs is opinion Plaintiff s physical therapy this opinion squats. The of this basis of The basis genie squats. include genie not include did not 2015 did 7, 2015 117, least necessitating at least balance necessitating poor balance had fair to poor assessment from February indicating that that he had 2015 indicating February 12, 2015 assessment not would strength muscle contact guard assistance. She asserts asserts his and lower lower extremity extremity muscle strength would not balance and his balance guard assistance. contact also has also Pines has The Pines squat. The genie squat. complete a genie have him to complete enable him sufficiently in six days to enable improved sufficiently have improved not did Pines the that concludes Diamond Dr. submitted an affirmation affirmation of of Dr. Lawrence Diamond concludes that Pines did not Diamond. Lawrence Diamond. submitted therapy physical therapy initial physical the initial states the Plaintiff. He states deviate treating Plaintiff. care in treating home care nursing home accepted nursing from accepted deviate from that his and medication, pain administered evaluation was proper, his treating physician properly administered pain medication, and that properly treating physician evaluation was proper, were therapy session physical therapy 2015 physical complaints session were February 17, 2015 following his February pain following increased pain of increased complaints of appropriately addressed addressed by medical Pines has also submitted submitted an expert expert affirmation affirmation of of Dr. Dr . medical staff. The Pines appropriately and York New of the State medicine in the David State of New York and practice medicine licensed to practice not licensed Clements is not Clements. Dr. Clements David Clements. in forth in exception under affidavit an thus is not permitted submit affirmation lieu of affidavit under the exception set forth of lieu in affirmation an submit to permitted thus and subscribed not was it because was not subscribed and CPLR 2106(a). statement was evidence because competent evidence not competent was also not 2106(a). His statement CPLR Abelove, 131 Jason L. Abe1ove, of Jason L.Offs. of Barouh affirmed to be true under the penalties of perjury. See Barouh v. L.Offs. perjury. of penalties under true affirmed nd reply by defect nd technical this AD3d corrected this technical defect in reply Pines corrected However, the Pines 2015). However, Dept 2015). AD3d 988, 991 (2 Dept consider it. shall consider court shall the court submitting circumstances, the the circumstances, Under the proper form. Under evidence in proper same evidence the same submitting the 5 [* 5] 5 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 .' nd Dept the screw that the Schwartz, 104 AD3d Clements opines opines that screw 2013). Dr. Clements Dept 2013). AD3d 659 (2nd Matos v. Schwartz, See Matos therapy physical 2015 17, February the pre-existed loosening was not caused by physical therapy but pre-existed the February 17,2015 physical therapy but therapy physical caused not loosening was February 17, the February prior to the reported prior Plaintiff reported _level Plaintiff session. The sole basis opinion is the pain pain ,level his opinion basis for his The sole session. session. 2015 therapy session. physical therapy 2015 physical and affidavits and expert affidavits the expert that the maintain that In opposition Plaintiffs maintain motion, Plaintiffs Pines' motion, the Pines' opposition to the summary to entitlement facie prima a affirmation are conclusory and insufficient to establish prima facie entitlement summary establish insufficient conclusory affirmation Diamond's with Dr. Diamond's conjunction with evidence in conjunction Pines' evidence judgment. the Pines' that the deciding, that without deciding, Assuming ,without judgment. Assuming, Plaintiffs' judgment, surmpary to entitlement affirmation is sufficient to establish prima facie entitlement surmpary judgment, Plaintiffs' facie prima a affirmation sufficient establish that he his deposition testified at his Plaintiff testified opposition of fact. Plaintiff deposition that issues of material issues demonstrate material papers demonstrate opposition papers that his pain testified that therapy session. physical therapy performed genie squats squats at the the February February 17, 2015 2015 physical session. He testified pain performed genie that ng occurred"duri that occurred'during that back that his back noise in his level dramatically after after hearing popping noise loud popping hearing a loud increased dramatically level increased he pain he of pain amount of the amount in the increase in qualitative increase to a qualitative physical therapy testified as to Plaintiff testified session. Plaintiff therapy session. physical Arle Jeffrey Dr. of experienced after after that event. Plaintiffhas further submitted submitted an expert expert affirmation affirmation of Jeffrey Arle Plaintiff has further that event. experienced the related issue with consistent would stating that the popping sound Plaintiff reported would be consistent with an issue related to the reported Plaintiff sound popping stating that Dimitrios Therapy Physical of screws placed during his surgery. surgery. An expert affidavit affidavit of of Doctor Doctor o{Physical Therapy Dimitrios An expert placed during screws prior progress prior making progress was making indicate he was Kostopoulos states that Plaintiff s physical therapy records indicate records therapy physical Plaintiffs that states Kostopoulos based ed contra-indicat was squats genie of to February February 17, 17,2015. He opines that the performance of genie squats was contra-indicated based opines that the performance 2015. that a 2015. He states February 17, on February condition on on the nature surgery and Plaintiffs 17,2015. states that Plaintiffs condition Plaintiffss surgery of Plaintiff nature of the appropriate from the direction for Plaintiff Plaintiff to perform genie squats. squats. would would deviate deviate from appropriate standard standard of of perform genie direction negligent was negligent Pines was the Pines whether the physical foregoing creates creates an issue issue of of fact as to whether therapy care. The foregoing physical therapy squats on genie performed, and directed was in its treatment treatment of of Plaintiff, specifically whether he was directed to, and performed, genie squats whether Plaintiff, specifically the Based proximate cause February activity was cause of of injury. injury. Based on on the was a proximate this activity whether this 2015, and whether February 17, 2015, foregoing, foregoing, it is Rehabilitation Nursing & Rehabilitation Center for Nursing ORDERED Poughkeepsie Center Pines at Poughkeepsie of the Pines motion of the motion that the ORDERED that that claim Pines' the to merit summary judgment denied. The court court finds no merit the Pines' claim that it may may not not be judgment is denied. for summary nonwith nonhad with contract it had clause in a contract held indemnification clause contractual indemnification based on a contractual Plaintiffs based liable to Plaintiffs held liable clause such and action this in raised properly not is party Preferred Therapy Solutions. That issue properly raised this action and such clause party Preferred Therapy Solutions. That issue Pines. negligence claims pursue negligence would claims against against the Pines. right to pursue Plaintiffs' right impact on Plaintiffs' have no impact would have this pre-trial conference of the Court. foregoing constitutes constitutes the decision decision and and order orderofthe Court. A pre-trial conference of of this The foregoing 9:30 a.m. 2021 at 9:30 June 10, action will 10,2021 held on June will be held action April .:J.D Dated: .:J.O ,, 2021 Dated: April York New Yark Poughkeepsie, , New Poughkeepsie ENTER: ENTER: ~-- MARlA G. ROSA, ROSA, J.S.C. J.S.C. MARIA 6 [* 6] 6 of 7 FILED: DUTCHESS COUNTY CLERK 04/21/2021 03:20 PM NYSCEF DOC. NO. 141 INDEX NO. 2017-51731 RECEIVED NYSCEF: 04/20/2021 -f"' .• Scanned to the E-File E-File System Scanned System only only appeal as of of right right must must be taken taken within within thirty thirty days after after service service by a Pursuant to CPLR Pursuant CPLR §5513, S5513, an appeal party upon upon the appellant of the judgment judgment or order order appealed appealed from from and and written written notice notice of of its party appellant of of a copy copy of of the judgment judgment or order order and written written notice notice entry, except when the appellant served a copy copy of except that that when appellant has served of its entry, entry, the appeal appeal must of must be taken taken within within thirty thirty days thereof. thereof. Bongiorno & Associate Associate The Law Law Offices Offices of of Joseph Joseph R. Bongiorno 250 Mineola Mineola Blvd. Blvd. Mineola, NY 11501 Mineola, NY Pilkington Leggett, P.C. Pilkington & Leggett, 222 Bloomingdale Bloomingdale Road, Road, Suite Suite 202 White Plains, Plains, NY NY 10605 White Sheeley Sheeley LLP 1,00 Wall Street, 1.00Wall Street, 19th Fl. New New York, York, NY NY 10005 7 [* 7] 7 of 7

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