Preview
FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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DINO BONAVITA, Index No.: 611506/2018
Plaintiffs,
-against- REPLY AFFIRMATION
SYED MUJAHID SAYEED, M.D., PRECISION
SURGERY OF NEW YORK, P.C., NORTH SHORE
UNIVERSITY HOSPITAL, and NORTHWELL
HEALTH,
Defendants.
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KERRIANNE RUSSO, ESQ., an attorney duly admitted to practice before the Courts of
the State of New York, affirms the following to be true under penalty of perjury:
1. I am an associate of the firm RUBIN PATERNITI GONZALEZ RIZZO
KAUFMAN, LLP, attorneys for defendant, NORTH SHORE UNIVERSITY HOSPITAL, and as
such, I am fully familiar with the facts and circumstances of the within matter through review and
handling of the litigation file as maintained by this office.
2. This affirmation is respectfully submitted in further support of the instant motion
seeking an Order: (1) pursuant to CPLR §3212, granting summary judgment as to the defendant
NORTH SHORE UNIVERSITY HOSPITAL; and (2) for such other, further, and different relief
as this Court deems just and proper.
Preliminary Statement
3. First and foremost, plaintiff has not submitted any opposition to challenge the
defendant’s prima facie showing that the care rendered by the staff of North Shore University
Hospital was within good and accepted practice and that no act or omission by the staff caused or
contributed to the plaintiff’s alleged injuries. Defendant’s burden for entitlement to judgment as
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a matter of law was satisfied through the affirmations of emergency medicine expert Robert Meyer,
MD and radiologist Kevin Mennitt, MD, who conclusively established that the staff properly
obtained a history, performed physical examinations, ordered appropriate testing and consultation
with plastic surgery, properly interpreted the x-ray imaging, and properly relied deferred treatment
of the plaintiff’s injury and follow up care to co-defendant plastic surgeon Dr. Sayeed.
Accordingly, as a matter of law, summary judgment must be granted on behalf of North Shore
University Hospital for all independent claims of negligence.
4. Moreover, plaintiff has failed to raise a triable issue of fact that the hospital is
vicariously liable for the independent acts of co-defendant Dr. Sayeed. As was establish in the
underlying papers, and even acknowledged in plaintiff’s affirmation in opposition, when given a
choice between non-party Dr. Greenberg who plaintiff contacted while in the ED or Dr. Sayeed,
plaintiff made the unilateral decision to proceed with care from Dr. Sayeed, effectively eliminating
any viable claim of vicarious liability. Accordingly, as a matter of law, summary judgment must
be granted on behalf of North Shore University Hospital for all claims stemming from the care
rendered by co-defendant Dr. Sayeed.
Plaintiff Has Failed To Raise A Triable Issue of Fact to Defeat The Defendant’s
Prima Facie Showing of Entitlement To Judgment As A Matter Of Law
5. Once the defendant has established their prima facie showing of entitlement to
judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any
material issues of fact, the plaintiff’s burden of proof is clear:
Once this [prima facie] showing has been made * * * the burden shifts to the party opposing
the motion for summary judgment to produce evidentiary proof in admissible form
sufficient to establish the existence of material issues of fact which require a trial of the
action. In a medical malpractice action, a plaintiff, in opposition to a defendant physician's
summary judgment motion, must submit evidentiary facts or materials to rebut the prima
facie showing by the defendant physician that he was not negligent in treating plaintiff so
as to demonstrate the existence of a triable issue of fact. General allegations of medical
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malpractice, merely conclusory and unsupported by competent evidence tending to
establish the essential elements of medical malpractice, are insufficient to defeat defendant
physician's summary judgment motion.
Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-325 (1986) (citations omitted).
6. An affirmation “which does not make specific observations as to the procedures or
treatment performed or the alleged improprieties therein, is insufficient to establish merit.”
Nepomniaschi v. Goldstein, 182 A.D.2d 743, 744 (2nd Dept. 1992); see Bollino v. Hitzig, 34
A.D.3d 711 (2nd Dept. 2006) (“the affirmation of the plaintiff's medical expert was insufficient to
demonstrate that the medical malpractice cause of action was meritorious, since the expert failed
to state with specificity, inter alia, his observations as to the procedures or treatments
performed and the alleged deviations from the acceptable standards of medical care by the
respondent”) (citations omitted); Chiaramonte v. Coppola, 81 A.D.3d 426 (1st Dept. 2011) (“The
affidavit of plaintiff's purported expert, * * * was insufficient since the expert failed to make
factual allegations, describe the extent of his or her knowledge of the matter, or state with
specificity the observations as to the procedures or treatments performed and defendant’s alleged
deviations from the acceptable standards of medical care. Nor does the expert explain how
the alleged departures from those standards contributed to the decedent's death”) (citations
omitted).
7. “Where the expert's ultimate assertions are speculative or unsupported by any
evidentiary foundation, however, the opinion should be given no probative force and is insufficient
to withstand summary judgment”. Diaz v. New York Downtown Hospital, 99 N.Y.2d 542 (2002).
See Browder v. N.Y. City Health & Hosps. Corp., 37 A.D.3d 375, 376 (1st Dept. 2007) (“The
affidavit was also insufficient since it failed to address the detailed affirmation of defendant's
expert, addressed the alleged departures from the standard of care and proximate cause only in
conclusory terms, was contradicted by the record, and was otherwise lacking in evidentiary
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foundation”); Wong v. Goldbaum, 23 A.D.3d 277, 279-280 (1st Dept. 2005) (“The opinion of a
qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry
standards has no probative force where the expert's ultimate assertions are speculative or
unsupported by any evidentiary foundation. The expert's opinion here was conclusory, and was
otherwise flawed by its misstatements of the evidence and unsupported assertions”) (citations
omitted).
8. Additionally, summary judgment cannot be denied simply if the parties’ experts
disagree, as competing experts almost always disagree; the question is whether the claim of the
plaintiff's expert is sufficiently supported by the records to raise an issue for the trier of fact. See
DeJesus v. Mishra, 93 A.D.3d 135, 138 (1st Dept. 2012).
9. Plaintiff must raise an issue of fact establishing that the defendants departed from
accepted standards of care and that such departure was the proximate cause of the alleged injury.
The Court in Mortensen v. Memorial Hospital, 105 A.D.2d 151 (1st Dept. 1984), clarified and
summarized the burden of proof on causation in a case involving a claim of “deprivation of a better
chance of recovery”:
(1) the plaintiff has the burden of proof on causation and must sustain this burden by a
preponderance of the evidence, meaning that it must be “more probable than not” that the
plaintiff’s injury was caused by the defendant's negligence;
(2) the defendant's negligence must be a “substantial factor in producing the injury”;
(3) where two or more causes have possibly produced the result (i.e., the underlying
disease process and the alleged malpractice), the plaintiff must present proof from which
the jury may reasonably infer that the defendant's negligence was a substantial
contributing cause of the injury; and
(4) a “mere possibility” of causation is insufficient to create a jury issue.
Id. at 158 (citations omitted).
10. For over the last thirty years, both the First and Second Departments have continued
to apply the standard articulated in Mortensen. See Gershon v. Anant, 72 A.D.3d 1022 (2nd Dept.
2010); Nguyen v. Dorce, 125 A.D.3d 571 (1st Dept. 2015).
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11. For example, in dismissing the plaintiff’s complaint, the Court in LaPierre v. Efron,
22 A.D.3d 808, 809 (2nd Dept. 2005) reasoned that “the expert testimony presented by the plaintiffs
on the issue of causation was insufficient for a reasonable person to conclude that it was more
probable than not that the decedent's death was caused by the respondents”.
12. Moreover, Courts have repeatedly held that dismissal of the complaint is warranted
where plaintiff cannot establish that the defendant’s alleged negligence was a substantial factor in
producing the injury. Malone v. Kim, 96 A.D.3d 477 (1st Dept. 2012) involved injury to the infant-
plaintiff sustained during labor and delivery. The moving defendant recommended that the infant
be delivered immediately, however said advices were not heeded by the co-defendant treating
obstetrician. The Court concluded that the moving defendant’s conduct could not have
proximately caused injury to the infant-plaintiff as his advices were not a substantial factor in
causing the injury. See also Dockery v. Sprecher, 68 A.D.3d 1043, 1045–46 (2nd Dept. 2009)
(“Furthermore, viewing the evidence in a light most favorable to the plaintiffs, the record contains
no evidence that Dr. Sprecher's misreading of the March 12, 2002, CAT scan or the alleged delay
in performing the aforementioned MRI was a substantial factor in causing Dockery's injuries”);
White v. Southside Hosp., 5 A.D.3d 677, 678–79 (2nd Dept. 2004) (“In opposition to the motions
of Dr. Chatalbash and Southside, the plaintiffs failed to raise a triable issue of fact with respect to
proximate cause. Their expert's affidavit contained bare, conclusory allegations based on pure
speculation, and thus, it failed to sufficiently raise an issue of fact as to whether the alleged
misconduct of Chatalbash and Southside substantially contributed to the decedent's demise”)
(citations omitted).
13. Importantly, a physician will be abdicated of responsibility if he or she relies upon
the advices of a consulting physician, as the consulting physician would be in the best position to
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diagnose a particular condition, as a result of his or her training in that particular specialty. See
Perez v Edwards, 107 A.D.3d 565 (1st Dept. 2013) (“Moreover, defendant [the private internist]
was entitled to rely on the treatment rendered to decedent in the hospital by specialists better
equipped to handle decedent's condition”); Boone v North Shore University Hospital, 12 A.D.3d
338 (2nd Dept. 2004) (Urologist who performed exploratory laparotomy to determine if plaintiff’s
renal cancer had spread, was not responsible for the continuation of the surgery by the general
surgeon).
Plaintiff Failed to Raise A Triable Issue of Fact with Respect to Allegations of Independent
Claims of Medical Malpractice/Informed Consent
As to North Shore University Hospital Requiring Dismissal
14. It is well established that a party is deemed to abandon or concede points that are
not opposed or addressed in a motion. See Keuhne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 (1975)
(facts appearing in the movants papers which the opposing party does not controvert may be
deemed to be admitted.); Tortorello v. Carlin, 260 A.D.2d 201 (1st Dept. 1999).
15. The moving defendant has established a prima facie showing of entitlement to
summary judgment through the affirmations of emergency medicine expert, Robert Meyer, MD
and radiology expert, Kevin Mennitt, MD. It was opined to a reasonable degree of medical
certainty that the staff of North Shore University Hospital timely and properly obtained the
pertinent history, performed physical examinations, ordered appropriate medications and
diagnostic testing, interpreted the diagnostic testing and properly relied upon the directives of the
consulting plastic surgeon Dr. Sayeed.
16. In contrast, plaintiff has wholly and unequivocally failed to affirmatively challenge
defendant’s expert affirmations. Stated otherwise, plaintiff did not submit an expert affirmation
to challenge the care rendered by the staff of North Shore University Hospital. More specifically,
the expert affirmation of Burt Greenberg, MD filed in opposition to the answering defendant’s
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motion explicitly states the affirmation was submitted in opposition of the summary judgment
motion made on behalf of co-defendant Dr. Sayeed and solely addresses the care rendered by Dr.
Sayeed. Quite literally, the affirmation of Dr. Greenberg does not at all address the care rendered
by the staff of North Shore University Hospital. Dr. Greenberg’s opinions solely address the care
of Dr. Sayeed.
17. By failing to address the care rendered by the staff of North Shore University
Hospital, which is entirely separate from the care rendered by Dr. Sayeed, plaintiff has
affirmatively abandoned any cause of action relating to independent claims of medical
malpractice/informed consent/negligence against North Shore University Hospital.
North Shore University Hospital is Not Vicariously Liable
For the Actions of Dr. Sayeed
18. The only argument posited against North Shore University Hospital comes by way
of the attorney affirmation in opposition asserting that the hospital is vicariously liable for the
actions of Dr. Sayeed as the consulting physician was provided by the hospital and that there was
no pre-existing relationship between Dr. Sayeed and plaintiff.
19. However, plaintiff’s opposition papers fail to appreciate the legal significance of
the plaintiff’s choice to receive care from Dr. Sayeed after consulting with an outside specialist.
As referenced in the moving defendant’s underlying papers, following a telephone discussion
between plaintiff, Dr. Sayeed and Dr. Greenberg himself, Dr. Greenberg advised plaintiff Dr.
Sayeed would be “fine to repair” plaintiff’s hand. Further, Dr. Sayeed testified plaintiff’s injury
could be managed outpatient by Dr. Greenberg or if plaintiff preferred, plaintiff’s injuries could
be repaired in the Emergency Department.
20. Thereby relying on the advice of Dr. Greenberg and understanding he did not have
to be treated by Dr. Sayeed in the Emergency Room, plaintiff made an independent choice to be
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treated by Dr. Sayeed. The circumstances herein are not akin to the patient who is misdiagnosed
by the hospital’s pathologist for which there is no input by the patient as to his choice of care
provider.
21. Accordingly, as demonstrated, North Shore University Hospital is not vicariously
liable for the acts of Dr. Sayeed and summary judgment is warranted. Assuming arguendo that the
Court concludes that the hospital is vicariously liable for the acts of Dr. Sayeed, if Dr. Sayeed is
granted summary judgment, then consistency would dictate that North Shore University Hospital
is likewise granted summary judgement.
CONCLUSION
22. The evidence set forth in support of defendant’s motion for summary judgment
satisfies the criteria necessary to establish a prima facie showing that the defendant is entitled to
summary judgment as a matter of law. The testimony and medical records, along with the expert
affirmations of Robert Meyer, MD and Kevin Mennitt, MD indisputably establish that all treatment
rendered by the staff of North Shore University Hospital was at all times in accordance with good
and accepted practice and did not cause or contribute to the plaintiff’s alleged injuries.
23. Moreover, plaintiff’s reliance on Dr. Greenberg’s advice and thereby choosing
treatment by Dr. Sayeed eliminates any claims for vicarious liability against North Shore
University Hospital.
24. Accordingly, summary judgment should be granted dismissing all claims against
the moving defendant with prejudice.
WHEREFORE, it is respectfully requested that this Court grant the motion for summary
judgment dismissing the Complaint in its entirety as to NORTH SHORE UNIVERSITY
HOSPITAL, and for such other, further, and different relief as this Court deems just and proper.
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Dated: October 31, 2022
Garden City, New York
___________________________
Kerrianne Russo, Esq.
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CERTIFICATION
Pursuant to the Uniform Rules for the Supreme Court Rule 202.8-b, this shall certify that
by the undersigned attorney filing the annexed Reply Affirmation, that the word count for this
affirmation is 2,428 words and compiles with the court count identified in Supreme Court Rule
202.8-b. In determining the word count identified, the undersign is relying upon the word-process
system (Microsoft Word) used to prepare this document.
Dated: October 31, 2022
Garden City, New York
_______________________________
Kerrianne Russo
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Preview
FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------X DINO BONAVITA, Index No.: 611506/2018 Plaintiffs, -against- REPLY AFFIRMATION SYED MUJAHID SAYEED, M.D., PRECISION SURGERY OF NEW YORK, P.C., NORTH SHORE UNIVERSITY HOSPITAL, and NORTHWELL HEALTH, Defendants. --------------------------------------------------------------------X KERRIANNE RUSSO, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under penalty of perjury: 1. I am an associate of the firm RUBIN PATERNITI GONZALEZ RIZZO KAUFMAN, LLP, attorneys for defendant, NORTH SHORE UNIVERSITY HOSPITAL, and as such, I am fully familiar with the facts and circumstances of the within matter through review and handling of the litigation file as maintained by this office. 2. This affirmation is respectfully submitted in further support of the instant motion seeking an Order: (1) pursuant to CPLR §3212, granting summary judgment as to the defendant NORTH SHORE UNIVERSITY HOSPITAL; and (2) for such other, further, and different relief as this Court deems just and proper. Preliminary Statement 3. First and foremost, plaintiff has not submitted any opposition to challenge the defendant’s prima facie showing that the care rendered by the staff of North Shore University Hospital was within good and accepted practice and that no act or omission by the staff caused or contributed to the plaintiff’s alleged injuries. Defendant’s burden for entitlement to judgment as 1 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 a matter of law was satisfied through the affirmations of emergency medicine expert Robert Meyer, MD and radiologist Kevin Mennitt, MD, who conclusively established that the staff properly obtained a history, performed physical examinations, ordered appropriate testing and consultation with plastic surgery, properly interpreted the x-ray imaging, and properly relied deferred treatment of the plaintiff’s injury and follow up care to co-defendant plastic surgeon Dr. Sayeed. Accordingly, as a matter of law, summary judgment must be granted on behalf of North Shore University Hospital for all independent claims of negligence. 4. Moreover, plaintiff has failed to raise a triable issue of fact that the hospital is vicariously liable for the independent acts of co-defendant Dr. Sayeed. As was establish in the underlying papers, and even acknowledged in plaintiff’s affirmation in opposition, when given a choice between non-party Dr. Greenberg who plaintiff contacted while in the ED or Dr. Sayeed, plaintiff made the unilateral decision to proceed with care from Dr. Sayeed, effectively eliminating any viable claim of vicarious liability. Accordingly, as a matter of law, summary judgment must be granted on behalf of North Shore University Hospital for all claims stemming from the care rendered by co-defendant Dr. Sayeed. Plaintiff Has Failed To Raise A Triable Issue of Fact to Defeat The Defendant’s Prima Facie Showing of Entitlement To Judgment As A Matter Of Law 5. Once the defendant has established their prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact, the plaintiff’s burden of proof is clear: Once this [prima facie] showing has been made * * * the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. In a medical malpractice action, a plaintiff, in opposition to a defendant physician's summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. General allegations of medical 2 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324-325 (1986) (citations omitted). 6. An affirmation “which does not make specific observations as to the procedures or treatment performed or the alleged improprieties therein, is insufficient to establish merit.” Nepomniaschi v. Goldstein, 182 A.D.2d 743, 744 (2nd Dept. 1992); see Bollino v. Hitzig, 34 A.D.3d 711 (2nd Dept. 2006) (“the affirmation of the plaintiff's medical expert was insufficient to demonstrate that the medical malpractice cause of action was meritorious, since the expert failed to state with specificity, inter alia, his observations as to the procedures or treatments performed and the alleged deviations from the acceptable standards of medical care by the respondent”) (citations omitted); Chiaramonte v. Coppola, 81 A.D.3d 426 (1st Dept. 2011) (“The affidavit of plaintiff's purported expert, * * * was insufficient since the expert failed to make factual allegations, describe the extent of his or her knowledge of the matter, or state with specificity the observations as to the procedures or treatments performed and defendant’s alleged deviations from the acceptable standards of medical care. Nor does the expert explain how the alleged departures from those standards contributed to the decedent's death”) (citations omitted). 7. “Where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment”. Diaz v. New York Downtown Hospital, 99 N.Y.2d 542 (2002). See Browder v. N.Y. City Health & Hosps. Corp., 37 A.D.3d 375, 376 (1st Dept. 2007) (“The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record, and was otherwise lacking in evidentiary 3 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 foundation”); Wong v. Goldbaum, 23 A.D.3d 277, 279-280 (1st Dept. 2005) (“The opinion of a qualified expert that a plaintiff's injuries were caused by a deviation from relevant industry standards has no probative force where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation. The expert's opinion here was conclusory, and was otherwise flawed by its misstatements of the evidence and unsupported assertions”) (citations omitted). 8. Additionally, summary judgment cannot be denied simply if the parties’ experts disagree, as competing experts almost always disagree; the question is whether the claim of the plaintiff's expert is sufficiently supported by the records to raise an issue for the trier of fact. See DeJesus v. Mishra, 93 A.D.3d 135, 138 (1st Dept. 2012). 9. Plaintiff must raise an issue of fact establishing that the defendants departed from accepted standards of care and that such departure was the proximate cause of the alleged injury. The Court in Mortensen v. Memorial Hospital, 105 A.D.2d 151 (1st Dept. 1984), clarified and summarized the burden of proof on causation in a case involving a claim of “deprivation of a better chance of recovery”: (1) the plaintiff has the burden of proof on causation and must sustain this burden by a preponderance of the evidence, meaning that it must be “more probable than not” that the plaintiff’s injury was caused by the defendant's negligence; (2) the defendant's negligence must be a “substantial factor in producing the injury”; (3) where two or more causes have possibly produced the result (i.e., the underlying disease process and the alleged malpractice), the plaintiff must present proof from which the jury may reasonably infer that the defendant's negligence was a substantial contributing cause of the injury; and (4) a “mere possibility” of causation is insufficient to create a jury issue. Id. at 158 (citations omitted). 10. For over the last thirty years, both the First and Second Departments have continued to apply the standard articulated in Mortensen. See Gershon v. Anant, 72 A.D.3d 1022 (2nd Dept. 2010); Nguyen v. Dorce, 125 A.D.3d 571 (1st Dept. 2015). 4 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 11. For example, in dismissing the plaintiff’s complaint, the Court in LaPierre v. Efron, 22 A.D.3d 808, 809 (2nd Dept. 2005) reasoned that “the expert testimony presented by the plaintiffs on the issue of causation was insufficient for a reasonable person to conclude that it was more probable than not that the decedent's death was caused by the respondents”. 12. Moreover, Courts have repeatedly held that dismissal of the complaint is warranted where plaintiff cannot establish that the defendant’s alleged negligence was a substantial factor in producing the injury. Malone v. Kim, 96 A.D.3d 477 (1st Dept. 2012) involved injury to the infant- plaintiff sustained during labor and delivery. The moving defendant recommended that the infant be delivered immediately, however said advices were not heeded by the co-defendant treating obstetrician. The Court concluded that the moving defendant’s conduct could not have proximately caused injury to the infant-plaintiff as his advices were not a substantial factor in causing the injury. See also Dockery v. Sprecher, 68 A.D.3d 1043, 1045–46 (2nd Dept. 2009) (“Furthermore, viewing the evidence in a light most favorable to the plaintiffs, the record contains no evidence that Dr. Sprecher's misreading of the March 12, 2002, CAT scan or the alleged delay in performing the aforementioned MRI was a substantial factor in causing Dockery's injuries”); White v. Southside Hosp., 5 A.D.3d 677, 678–79 (2nd Dept. 2004) (“In opposition to the motions of Dr. Chatalbash and Southside, the plaintiffs failed to raise a triable issue of fact with respect to proximate cause. Their expert's affidavit contained bare, conclusory allegations based on pure speculation, and thus, it failed to sufficiently raise an issue of fact as to whether the alleged misconduct of Chatalbash and Southside substantially contributed to the decedent's demise”) (citations omitted). 13. Importantly, a physician will be abdicated of responsibility if he or she relies upon the advices of a consulting physician, as the consulting physician would be in the best position to 5 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 diagnose a particular condition, as a result of his or her training in that particular specialty. See Perez v Edwards, 107 A.D.3d 565 (1st Dept. 2013) (“Moreover, defendant [the private internist] was entitled to rely on the treatment rendered to decedent in the hospital by specialists better equipped to handle decedent's condition”); Boone v North Shore University Hospital, 12 A.D.3d 338 (2nd Dept. 2004) (Urologist who performed exploratory laparotomy to determine if plaintiff’s renal cancer had spread, was not responsible for the continuation of the surgery by the general surgeon). Plaintiff Failed to Raise A Triable Issue of Fact with Respect to Allegations of Independent Claims of Medical Malpractice/Informed Consent As to North Shore University Hospital Requiring Dismissal 14. It is well established that a party is deemed to abandon or concede points that are not opposed or addressed in a motion. See Keuhne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 (1975) (facts appearing in the movants papers which the opposing party does not controvert may be deemed to be admitted.); Tortorello v. Carlin, 260 A.D.2d 201 (1st Dept. 1999). 15. The moving defendant has established a prima facie showing of entitlement to summary judgment through the affirmations of emergency medicine expert, Robert Meyer, MD and radiology expert, Kevin Mennitt, MD. It was opined to a reasonable degree of medical certainty that the staff of North Shore University Hospital timely and properly obtained the pertinent history, performed physical examinations, ordered appropriate medications and diagnostic testing, interpreted the diagnostic testing and properly relied upon the directives of the consulting plastic surgeon Dr. Sayeed. 16. In contrast, plaintiff has wholly and unequivocally failed to affirmatively challenge defendant’s expert affirmations. Stated otherwise, plaintiff did not submit an expert affirmation to challenge the care rendered by the staff of North Shore University Hospital. More specifically, the expert affirmation of Burt Greenberg, MD filed in opposition to the answering defendant’s 6 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 motion explicitly states the affirmation was submitted in opposition of the summary judgment motion made on behalf of co-defendant Dr. Sayeed and solely addresses the care rendered by Dr. Sayeed. Quite literally, the affirmation of Dr. Greenberg does not at all address the care rendered by the staff of North Shore University Hospital. Dr. Greenberg’s opinions solely address the care of Dr. Sayeed. 17. By failing to address the care rendered by the staff of North Shore University Hospital, which is entirely separate from the care rendered by Dr. Sayeed, plaintiff has affirmatively abandoned any cause of action relating to independent claims of medical malpractice/informed consent/negligence against North Shore University Hospital. North Shore University Hospital is Not Vicariously Liable For the Actions of Dr. Sayeed 18. The only argument posited against North Shore University Hospital comes by way of the attorney affirmation in opposition asserting that the hospital is vicariously liable for the actions of Dr. Sayeed as the consulting physician was provided by the hospital and that there was no pre-existing relationship between Dr. Sayeed and plaintiff. 19. However, plaintiff’s opposition papers fail to appreciate the legal significance of the plaintiff’s choice to receive care from Dr. Sayeed after consulting with an outside specialist. As referenced in the moving defendant’s underlying papers, following a telephone discussion between plaintiff, Dr. Sayeed and Dr. Greenberg himself, Dr. Greenberg advised plaintiff Dr. Sayeed would be “fine to repair” plaintiff’s hand. Further, Dr. Sayeed testified plaintiff’s injury could be managed outpatient by Dr. Greenberg or if plaintiff preferred, plaintiff’s injuries could be repaired in the Emergency Department. 20. Thereby relying on the advice of Dr. Greenberg and understanding he did not have to be treated by Dr. Sayeed in the Emergency Room, plaintiff made an independent choice to be 7 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 treated by Dr. Sayeed. The circumstances herein are not akin to the patient who is misdiagnosed by the hospital’s pathologist for which there is no input by the patient as to his choice of care provider. 21. Accordingly, as demonstrated, North Shore University Hospital is not vicariously liable for the acts of Dr. Sayeed and summary judgment is warranted. Assuming arguendo that the Court concludes that the hospital is vicariously liable for the acts of Dr. Sayeed, if Dr. Sayeed is granted summary judgment, then consistency would dictate that North Shore University Hospital is likewise granted summary judgement. CONCLUSION 22. The evidence set forth in support of defendant’s motion for summary judgment satisfies the criteria necessary to establish a prima facie showing that the defendant is entitled to summary judgment as a matter of law. The testimony and medical records, along with the expert affirmations of Robert Meyer, MD and Kevin Mennitt, MD indisputably establish that all treatment rendered by the staff of North Shore University Hospital was at all times in accordance with good and accepted practice and did not cause or contribute to the plaintiff’s alleged injuries. 23. Moreover, plaintiff’s reliance on Dr. Greenberg’s advice and thereby choosing treatment by Dr. Sayeed eliminates any claims for vicarious liability against North Shore University Hospital. 24. Accordingly, summary judgment should be granted dismissing all claims against the moving defendant with prejudice. WHEREFORE, it is respectfully requested that this Court grant the motion for summary judgment dismissing the Complaint in its entirety as to NORTH SHORE UNIVERSITY HOSPITAL, and for such other, further, and different relief as this Court deems just and proper. 8 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 Dated: October 31, 2022 Garden City, New York ___________________________ Kerrianne Russo, Esq. 9 of 10 FILED: NASSAU COUNTY CLERK 10/31/2022 12:24 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 132 RECEIVED NYSCEF: 10/31/2022 CERTIFICATION Pursuant to the Uniform Rules for the Supreme Court Rule 202.8-b, this shall certify that by the undersigned attorney filing the annexed Reply Affirmation, that the word count for this affirmation is 2,428 words and compiles with the court count identified in Supreme Court Rule 202.8-b. In determining the word count identified, the undersign is relying upon the word-process system (Microsoft Word) used to prepare this document. Dated: October 31, 2022 Garden City, New York _______________________________ Kerrianne Russo 10 of 10