Opinion
09-30-2015
Isaac PARDO, respondent, v. O'HALLERAN FAMILY CHIROPRACTIC, defendant, Michael O'Halleran, etc., appellant.
Tromello, McDonnell & Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellant. Wisell & McGee, LLP, Kew Gardens, N.Y. (John T. Wisell of counsel), for respondent.
Tromello, McDonnell & Kehoe, Melville, N.Y. (James S. Kehoe of counsel), for appellant.Wisell & McGee, LLP, Kew Gardens, N.Y. (John T. Wisell of counsel), for respondent.
Opinion In an action to recover damages for medical malpractice, the defendant Michael O'Halleran appeals, as limited by his brief, from so much an order of the Supreme Court, Nassau County (Sher, J.), dated December 3, 2013, as denied those branches of his motion which were for summary judgment dismissing the complaint insofar as asserted against him or, in the alternative, to strike the plaintiff's claim for lost earnings, and to compel discovery.
ORDERED that the order is affirmed insofar as appealed from, with costs.
The Supreme Court properly denied that branch of the motion of the defendant Michael O'Halleran (hereinafter the appellant) which was for summary judgment dismissing the complaint insofar as asserted against him. In response to the appellant's prima facie showing of his entitlement to judgment as a matter of law, the plaintiff raised triable issues of fact as to whether the appellant's chiropractic treatment caused the plaintiff's injury (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Colao v. St. Vincent's Med. Ctr., 65 A.D.3d 660, 662, 885 N.Y.S.2d 306 ).
Additionally, the Supreme Court properly denied that branch of the appellant's motion which was, in the alternative, to strike the plaintiff's claim for lost earnings since the appellant failed to establish, prima facie, that the plaintiff would be unable to establish lost earnings with reasonable certainty (see Proulx v. Entergy Nuclear Indian Point 2, LLC, 98 A.D.3d 492, 493, 949 N.Y.S.2d 178 ; Deans v. Jamaica Hosp. Med. Ctr., 64 A.D.3d 742, 744, 883 N.Y.S.2d 580 ; Karwacki v. Astoria Med. Anesthesia Assoc., P.C., 23 A.D.3d 438, 808 N.Y.S.2d 123 ; Davis v. City of New York, 264 A.D.2d 379, 693 N.Y.S.2d 230 ; see also Johnston v. Colvin, 145 A.D.2d 846, 848, 535 N.Y.S.2d 833 ). Since the appellant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the claim for lost earnings, we need not consider the sufficiency of the plaintiff's opposition papers on this issue (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
Finally, the appellant failed to provide the required affirmation of good faith effort to resolve the parties' discovery disputes and, therefore, the Supreme Court properly denied that branch of the appellant's motion which was to compel discovery (see 22 NYCRR 202.7 [a][2]; Deutsch v. Grunwald, 110 A.D.3d 949, 973 N.Y.S.2d 335 ; Matter of Greenfield v. Board of Assessment Review for Town of Babylon, 106 A.D.3d 908, 965 N.Y.S.2d 555 ; Martinez v. 1261 Realty Co., LLC, 121 A.D.3d 955, 956, 995 N.Y.S.2d 581 ).
LEVENTHAL, J.P., CHAMBERS, AUSTIN and MILLER, JJ., concur.