Opinion
Index No. 805024/2020 MOTION SEQ. No. 001
10-10-2023
RONALD TOMO, CAROLYN ROSE-TOMO Plaintiff, v. PATRICK O'LEARY, PATRICK F. O'LEARY, M.D., F.A.C.S., P.C., Defendant.
Unpublished Opinion
MOTION DATE 10/05/2023
PRESENT: HON. JUDITH N. MCMAHON Justice
DECISION + ORDER ON MOTION
Judith N. McMahon, Judge
The following e-fiied documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 62, 63, 64, 65, 66 together with Plaintiffs' undated opposition papers and exhibits which were not e-filed were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, the motion of defendants Hospital for Special Surgery, and Patrick F. O'Leary, M.D. also s/h/a Patrick F. O'Leary, M.D., F.A.C.S., P.C. (collectively the "Defendants") for summary judgment dismissing plaintiffs' complaint pursuant to CPLR 3212 is granted, and the action is dismissed with prejudice.
Plaintiffs' former attorneys commenced this medical malpractice action by filing and serving a Summons and Complaint upon defendants on January 21, 2020 (see NYSCEF Doc. No. 1 and 2). Discovery commenced and concluded, and on August 1, 2022, plaintiffs filed a Note of Issue and Certificate of Readiness (see NYSCEF Doc. No. 20). Defendants moved for summary judgment (see NYSCEF Doc. No. 24) dismissing the complaint in November of 2022, maintaining, inter alia, that the care and treatment rendered to Mr. Tomo complied with the applicable standard of care, and that any alleged action or inaction by defendants did not cause or contribute to the injuries alleged. In response, plaintiffs' counsel moved by Order to Show Cause, on January 17, 2023, to be relieved as attorneys (see NYSCEF Doc. No. 58). This Court granted the Order to Show Cause, and gave plaintiffs until July 27,2023, to either retain new counsel (see NYSCEF Doc. No. 60), or to advise this Court whether they wished to represent themselves. Plaintiffs chose the latter, served opposition to this motion on or about September 18, 2023, and participated in oral argument of the motion which was held on the record on Octobers, 2023.
To prevail on a motion for summary judgment, the proponent must make prima facie showing of entitlement to judgment as a matter of law, through admissible evidence demonstrating the absence of any material issue of fact (see Klein v. City of New York, 89 N.Y.2d 833 [1996]; Ayotte v. Gervasio, 81 N.Y.2d 1062 [1993]; Alvarez v. Prospect Hospital 68 N.Y.2d 320 [1986]). "Since summary judgment is the equivalent of a trial, it has been a cornerstone of New York jurisprudence that the proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law" (Ostrov v. Rozbruch, 91 A.D.3d 147 [1st Dept. 2012]).
Here, defendants submit, inter alia, the expert affirmation of an orthopedic surgeon, Andrew C. Hecht, M.D. (see NYSCEF Doc. No. 27), who concludes to a reasonable degree of medical certainty that "Dr. O'Leary and the HSS staff treated and cared for plaintiff in accordance with the applicable standards of care, and that any alleged departure from good and accepted medical practice did not cause or contribute to any of the injuries claimed" (id., para 3).
"Movants' expert affirmation is detailed, specific and factual in nature and is based upon the facts in the record (see Roques v. Noble, 73 A.D.3d 204, 206 [1st Dept. 2010]; see also Pascocello v. Jibone, 161 A.D.3d 516 [1st Dept. 2018]; [internal citations omitted]). Accordingly. "[t]he affirmation of defendants' expert was sufficient to meet defendants' prima facie burden of establishing the absence of a departure from good and accepted medical practice, or that any such departure was not a proximate cause of plaintiff s alleged injuries" (Einach v. Lenox Hill Hosp., 160 A.D.3d 443 [1st Dept. 2018]).
"Where a defendant makes a prima facie entitlement to summary judgment dismissing a medical malpractice action hy submitting the affirmation from a medical expert establishing that the treatment provided to the injured plaintiff comported with good and accepted practice, the burden shifts to the plaintiff to present evidence in admissible form that demonstrates the existence of a triable issue of fact" (Bartolacci-Meir v. Sassoon, 149 A.D.3d 567, 570 [1st Dept. 2017]; see also DeCintio v. Lawrence Hosp., 25 A.D.3d 320 [1st Dept. 2006]; Ducasse v. New York City Health & Hosps. Corp., 148 A.D.3d 434 [1st Dept. 2017]).
Here, despite his 40-year career in hospital administration (even serving as hospital vice president), Mr. Tomo has failed to adequately oppose defendants' summary judgment motion. While delineating his complaints in great detail, Mr. Tomo neglected (1) to submit the affirmation of a medical expert identifying defendants' departures from the standard of medical care, and (2) explain the proximate causation between defendants' allegedly negligent conduct and plaintiffs injuries. "An expert's opinion must be based on facts in the record or personally known to the witness, and in the absence of such record support, an expert's opinion is without probative force" (Pascocello v. Jibone, 161 A.D.3d 516 [1st Dept. 2018]; Roques v. Noble, 73 A.D.3d 204, 206 [1st Dept. 2010]). The purported transcript of the dialogue between plaintiff and Dr. Diwashish Biswas fails to raise a triable issue of fact sufficient to defeat this motion.
Accordingly, it is
ORDERED that the motion for summary judgment by the defendants Hospital for Special Surgery and Patrick F. O'Leary, M.D. is granted; and it is further
ORDERED that the Clerk is directed to enter judgment in favor of defendants dismissing the plaintiffs' complaint with prejudice; and it is further
ORDERED that the captioned matter is dismissed.