Hon. MARK D. COHEN Acting Justice of the Supreme Court
MEMORANDUM DECISION CAL. No. 14-00123MM PRESENT: Hon. MARK D. COHEN Acting Justice of the Supreme Court MOTION DATE 6-12-14 (004 &006)
MOTION DATE 6-5-14 (005)
MOTION DATE 1-15-15 (007)
ADJ. DATE: 6-24-15
Mot. Seq. # 004 - MG # 006 -MotD # 005 -MG # 007 - MG
KELNER AND KELNER, ESQS.
Attorney for Plaintiffs
140 Broadway, 37th Floor
New York, New York 10005
KERLEY, WALSH, MATERA and CINQUEMANI, P.C.
Attorney for Defendants Vitale, P.A., Huntington Hospital and Shih, M.D.
2174 Jackson Avenue
Seaford, New York 11783 Schwartzberg's case when she avoidably suffered an ischemic right middle cerebral artery territory stroke..." The expert opines that Dr. Dowling did not properly assess the plaintiff, failed to develop a proper differential diagnosis and failed to facilitate tests or seek immediate vascular surgical evaluation. This was based, inter alia, upon a Doppler which indicated a decrease blood flow in a segment of the brachiocephalic system. The expert notes that Dr. Dowling, plus the defendant's expert, fail to understand that proper testing to understand the plaintiff's condition prior to performing osteopathic maneuvers was a deviation from reasonable care. Furthermore, had Dr. Dowling required proper radiological studies and vascular studies, he would have prevented the plaintiff's stroke. The plaintiffs have raised an issue of fact requiring denial of the motion. See Harris v. Saint Joseph's Medical Center, 128 A.D.3d 1010; Hofsiss v. Goodman, 128 A.D.3d 898. Consequently, that part of the motion seeking summary judgment for defendants, Osteopathic Manipulative Medicine Associates, P.C. and Dennis J. Dowling, D.O., is denied. The plaintiffs have cross moved to preclude any remaining defendant from limiting their liability at the time of trial pursuant to CPLR article 16. CPLR article 16 are forfeited as to any codefendant who has been awarded summary judgment in its favor. Hendrickson v. Philbor Motors, Inc., 102 A.D.3d 251. As Professor Alexander noted in his commentaries, "When a co-defendant is dismissed from an action as a result of summary judgment (CPLR 3212), the remaining defendant has no basis thereafter for an Article 16 apportionment of liability with respect to the dismissed party. This is because summary judgment is the functional equivalent of a trial on the merits, meaning that the court has found, as a matter of law, that the dismissed party is free of liability." Vincent C. Alexander, Practice Commentaries, McKinney's Cons.Laws of NY, Book 7B, CPLR, CC1603, Supp. p. 29-30. Therefore, to rebut the motion, the opposing party must submit evidence in admissible form. See Drooker v. South Nassau Communities Hosp., 175 Misc.2d 181. Here, none of the oppositions submitted any evidence to raise any issue of fact. Consequently, the plaintiffs' motion is granted. Settle order. Dated: July 1, 2015
"Plaintiffs" indicate both Cara Schwartzberg and her mother, Jill Schwartzberg, individually.
His impression was Raynaud's syndrome or a snuffbox injury.
The plaintiff was seen by Dr. Jennifer Lamonica, a chiropractor, on March 4, 2006. The plaintiff was also taking an Aspirin and Motrin for headaches.
A faxed copy did not arrive during the visit. It was to be provided in follow up visits.
The force was no greater in form than throwing a baseball or throwing a basketball.
The Court has reviewed the unredacted affidavits and returned them to the plaintiffs' attorney. Of course, they must be kept if required for appellate review.
The plaintiffs' verified bill of particulars sufficiently particularizes that the Dr. Dowling failed to vigorously investigate the plaintiff's complaints. --------
/s/_________
MARK D. COHEN, A.J.S.C.
___ FINAL DISPOSITION X NON-FINAL DISPOSITION
TO: SANTANGELO & SLATTERY
Attorney for Defendant Anto, M.D.
1800 Northern Boulevard
Roslyn, New York 11576
ANTHONY P. VARDARO, P.C.
Attorney for Defendants Pediatric Cardiology, Vallone, M.D.,
Osteopathic Manipulative Medicine and Dowling, D.O.
732 Smithtown Bypass, Suite 203
Smithtown, New York 11787