Opinion
2018–12580 Index No. 100503/15
12-23-2020
Joseph CUCCHIARA, etc., appellant, v. Mario FUNICELLI, etc., et al., respondents.
Sullivan Papain Block McGrath Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellant. Bartlett LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for respondents.
Sullivan Papain Block McGrath Cannavo, P.C., New York, N.Y. (Stephen C. Glasser and Christopher J. DelliCarpini of counsel), for appellant.
Bartlett LLP, White Plains, N.Y. (David C. Zegarelli of counsel), for respondents.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action to recover damages for medical and chiropractic malpractice, the plaintiff appeals from an order of the Supreme Court, Richmond County (Alan C. Marin, J.), dated August 16, 2018. The order granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On March 25, 2011, the plaintiff's brother, Thomas Cucchiara (hereinafter the decedent), allegedly sustained personal injuries when he was involved in a motor vehicle accident. Beginning in 2011, the decedent received chiropractic treatment from the defendant Mario Funicelli, a chiropractor, and medical treatment from the defendant Igor Stiler, a neurologist, for alleged injuries sustained by him in the accident. According to Funicelli and Stiler, during their examinations of the decedent, the decedent did not make any complaints regarding the condition of his skin and they did not observe any skin condition.
On May 14, 2014, the decedent presented to his dermatologist complaining of a swollen area behind his left ear. On June 4, 2014, the dermatologist obtained a "punch biopsy." On June 12, 2014, the biopsy revealed positive results for adenocarcinoma of the skin.
In the instant action, the plaintiff alleged, inter alia, that the defendants committed medical and chiropractic malpractice in failing to diagnose adenocarcinoma of the skin on the decedent's head and neck in a timely manner and in failing to refer the decedent to an appropriate specialist. Following discovery, the defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion. The plaintiff appeals, and we affirm.
Medical malpractice actions require evidence that "that the physician deviated or departed from accepted community standards of practice, and that such a departure was a proximate cause of the plaintiff's injuries" ( Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). "So, too, chiropractic malpractice actions require proof that the defendant chiropractor deviated or departed from the accepted community standards of chiropractic practice, and that such deviation or departure was a proximate cause of the plaintiff's injuries" ( Bongiovanni v. Cavagnuolo, 138 A.D.3d 12, 16, 24 N.Y.S.3d 689 ). A defendant moving for summary judgment in a medical or chiropractic malpractice action must demonstrate the absence of any material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ), with respect to at least one of those elements (see DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Bongiovanni v. Cavagnuolo, 138 A.D.3d at 16, 24 N.Y.S.3d 689 ; Cham v. St. Mary's Hosp. of Brooklyn, 72 A.D.3d 1003, 1004, 901 N.Y.S.2d 65 ). "In opposition, the plaintiff must demonstrate the existence of a triable issue of fact only as to the elements on which the defendant has met his or her initial burden" ( Rivers v. Birnbaum, 102 A.D.3d 26, 43, 953 N.Y.S.2d 232 ; see Metcalf v. O'Halleran, 137 A.D.3d 758, 759, 25 N.Y.S.3d 679 ; Stukas v. Streiter, 83 A.D.3d at 23–24, 918 N.Y.S.2d 176 ).
Here, the defendants established their prima facie entitlement to judgment as a matter of law. In support of their motion, the defendants demonstrated, through the affirmations of their experts, the medical records, and their deposition testimony, that their role was limited to evaluating and treating injuries the decedent allegedly suffered to his neck and back in the accident (see Donnelly v. Parikh, 150 A.D.3d 820, 822–823, 55 N.Y.S.3d 274 ; Meade v. Yland, 140 A.D.3d 931, 933, 33 N.Y.S.3d 444 ). Further, the defendants demonstrated, prima facie, that any alleged negligence in failing to refer the decedent to a dermatologist or specialist did not cause a worsening of the decedent's adenocarcinoma, as the decedent did, in fact, visit his dermatologist in July 2013, who assessed the decedent's neck and found "no suspicious lesions" (see DiLorenzo v. Zaso, 148 A.D.3d at 1113, 50 N.Y.S.3d 503 ; Sukhraj v. New York City Health & Hosps. Corp., 106 A.D.3d 809, 810, 965 N.Y.S.2d 532 ).
In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his testimony that he observed a quarter-sized red spot on the decedent's neck on Mother's Day 2013 was insufficient to raise a triable issue of fact as to whether the defendants should have observed that "spot" and referred the decedent to a specialist. Moreover, the affirmation of the plaintiff's expert was conclusory and speculative (see Abakpa v. Martin, 132 A.D.3d 924, 927, 19 N.Y.S.3d 303 ; Senatore v. Epstein, 128 A.D.3d 794, 796, 9 N.Y.S.3d 362 ).
Accordingly, we agree with the Supreme Court's determination granting the defendants' motion for summary judgment dismissing the complaint.
RIVERA, J.P., AUSTIN, IANNACCI and CHRISTOPHER, JJ., concur.