Chipley v. Stephenson

Appeal from an order of the Supreme Court, Chautauqua County (Timothy J. Walker, A.J.), entered November 25, 2008 in a medical malpractice action. The order granted defendants’ motions for summary judgment. It is hereby ordered that the order so appealed from is modified on the law by denying the motions of defendants Grant W Stephenson, M.D., individually and doing business as Dr. Grant W Stephenson Family Medicine, and Richard J. DeFranco, M.D., individually and doing business as G&P Gyne Care and/or G&P Gyne Care, Inc., and reinstating the complaint against them and as modified the order is affirmed without costs. Memorandum: Plaintiff commenced this medical malpractice action, individually and on behalf of her son, seeking damages for injuries sustained when plaintiff gave birth to her son. We agree with plaintiff that Supreme Court erred in .granting the motions of defendants Grant W Stephenson, M.D., individually and doing business as Dr. Grant W. Stephenson Family Medicine, [1549] and Richard J. DeFranco, M.D., individually and doing business as G&P Gynecare, EC., incorrectly sued as G&P Gyne Care and/or G&P Gyne Care, Inc., for summary judgment dismissing the complaint against them, and we thus modify the order accordingly. Although those defendants met their initial burden of establishing their entitlement to judgment as a matter of law, we conclude that the affidavit of plaintiffs expert submitted in opposition to the respective motions raised triable issues of fact sufficient to defeat the motions (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We reject Stephenson’s contention, as an alternative ground for affirmance (see generally Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546 [1983]; Cataract Metal Finishing, Inc. v City of Niagara Falls, 31 AD3d 1129, 1130 [2006]), that plaintiffs expert was not qualified to render an opinion with respect to Stephenson’s treatment of plaintiff and her son (cf. Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]). Indeed, plaintiffs expert had 40 years of experience in the field of obstetrics and gynecology and was affiliated with the hospital where the delivery occurred for the purpose of consulting on problematic cases in that field. We also reject the contention of DeFranco, as an alternative ground for affirmance, that the court abused its discretion in considering plaintiffs opposing papers (cf. Mosheyeva v Distefano, 288 AD2d 448 [2001]). Although we agree with DeFranco that plaintiffs expert relied on facts not in evidence at one point in his affirmation, we conclude that the remainder of that affirmation was properly based on the facts in evidence. We thus conclude that the opinion of plaintiffs expert that the injuries sustained by plaintiff and her son “ ‘were caused by a deviation from relevant industry standards . . . preclude^] a grant of summary judgment in favor of [DeFranco]’ ” (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; see Tuorto v Jadali, 62 AD3d 784 [2009]; see also Cooper v St. Vincent’s Hosp. of N.Y., 290 AD2d 358 [2002]). Contrary to DeFranco’s further contention, plaintiff’s bill of particulars in response, to the demand by DeFranco was not insufficient inasmuch as it provided the requisite general statement “ ‘of the acts or omissions constituting the negligence claimed’ ” (Stidham v Clerk, 57 AD3d 1369, 1369 [2008]). We reject, however, plaintiffs contention that the court erred in granting that part of the motion of defendant Westfield Memorial Hospital, Inc. (WMH) for summary judgment dismissing the claim that it violated the Emergency Medical Treatment and Active Labor Act (EMTALA) (42 USC § 1395dd). Even assuming, arguendo, that the EMTALA claim was properly pleaded, we agree with the court that it is time-barred inasmuch [1550] as the action was commenced approximately two years and six months after the EMTALA claim accrued (see 42 USC § 1395dd [d] [2] [C]). Contrary to plaintiffs further contention, the toll for infancy does not apply to extend the statute of limitations with respect to that claim (see Vogel v Linde, 23 F3d 78, 80 [1994]). In any event, the EMTALA claim is without merit because the record contains no evidence of disparate treatment of plaintiff by WMH (see generally Lidge v Niagara Falls Mem. Med. Ctr. [appeal No. 2], 17 AD3d 1033, 1035 [2005]). Finally, we note that plaintiff does not contend that the court erred in granting those parts of the motion for summary judgment dismissing the negligence and breach of contract causes of action against WMH, and she therefore has abandoned any issues concerning those causes of action (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]). All concur except Smith, J.P., who dissents in part and votes to affirm in the following memorandum.