Jazmon E. v. Mechtler , 2023 NY Slip Op 04272 ( 2023 )

Jazmon E. v Mechtler (2023 NY Slip Op 04272)

Jazmon E. v Mechtler

2023 NY Slip Op 04272

Decided on August 11, 2023

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on August 11, 2023 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.

458 CA 22-00242

[*1]JAZMON E., INDIVIDUALLY AND AS PARENT AND NATURAL GUARDIAN OF K.W., PLAINTIFF-APPELLANT-RESPONDENT,

v

STEPHEN MECHTLER, M.D., DEFENDANT-RESPONDENT-APPELLANT, KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE SUBURBAN HOSPITAL, DEFENDANT-RESPONDENT, ET AL., DEFENDANT.

BROWN CHIARI, LLP, BUFFALO (MICHAEL R. DRUMM OF COUNSEL), FOR PLAINTIFF-APPELLANT-RESPONDENT.

EAGAN & HEIMER PLLC, BUFFALO (LAUREN A. HEIMER OF COUNSEL), FOR DEFENDANT-RESPONDENT-APPELLANT.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (AMANDA C. ROSSI OF COUNSEL), FOR DEFENDANT-RESPONDENT.

Appeal and cross-appeal from an order of the Supreme Court, Erie County (Frederick J. Marshall, J.), entered January 21, 2022. The order, among other things, granted the motion of, among others, defendant Kaleida Health, doing business as Millard Fillmore Suburban Hospital, for summary judgment dismissing the complaint against it, and denied in part the motion of defendant Stephen Mechtler, M.D. for summary judgment.

It is hereby ORDERED that the order so appealed from is affirmed without costs for reasons stated at Supreme Court.

All concur except Ogden, J., who dissents in part and votes to modify in accordance with the following memorandum: I respectfully dissent, in part, in this medical malpractice action, wherein plaintiff seeks to recover damages for injuries allegedly sustained by plaintiff's child during birth. Plaintiff appeals and defendant Stephen Mechtler, M.D. cross-appeals from an order that, among other things, denied Mechtler's motion for summary judgment dismissing the complaint against him, except for certain allegations in plaintiff's bill of particulars for failure to address those allegations in opposition to the motion, and granted the motion of defendant Kaleida Health, doing business as Millard Fillmore Suburban Hospital (Kaleida), among others, insofar as it sought summary judgment dismissing the complaint against it.

When reviewing a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party (see Robinson v Strong Mem. Hosp. , 98 AD2d 976, 976 [4th Dept 1983]). Assuming, arguendo, that Kaleida met its initial burden on the motion insofar as it sought summary judgment dismissing the complaint against it, I agree with plaintiff that her submission of the expert affidavit raised a triable issue of fact (see Atkins v Piazza , 281 AD2d 884, 884 [4th Dept 2001]), and thus Supreme Court erred in granting the motion to that extent. I would therefore modify the order accordingly.

Entered: August 11, 2023

Ann Dillon Flynn

Clerk of the Court