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FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016
NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022
STATE OF NEW YORK
SUPREME COURT : COUNTY OF NIAGARA
THOMAS and CHERYL KAUSNER,
Individually and as Husband and Wife,
Plaintiffs,
-vs- NOTICE OF ENTRY
BUFFALO SPINE SURGERY, PLLC Index No. El59518/2016
ANDREW CAPPUCCINO, M.D.
ERIC DEAN, RPA-C
HARNATH B. CLERK, M.D., P.C.
HARNATH B. CLERK, M.D.
EASTERN NIAGARA HOSPITAL
ROBERT E. LUTNICK, M.D.
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDICINE ASSOCIATES, P.C.
Defendants.
PLEASE TAKE NOTICE, that an Order, of which the within is a copy, was duly granted in the
25th
within-entitled action on the day of July, 2022 and duly entered in the Niagara County Clerk's
Office on July 28, 2022.
Dated: Buffalo, New York
August 24, 2022
ROACH, BROWN, McCARTHY & GRUBER, P.C.
By:
J. Mark Gruber, Esq.
Attorneys for Defendant,
EASTERN NIAGARA HOSPITAL, INC., et al.
1920 Liberty Building
Buffalo, New York 14202
(716) 852-0400
Mgruber@roachbrown.com
To: The Fitzgerald Firm
Attorney for Plaintiffs
424 Main Street, Suite 509
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Buffalo, New York 14202
(716) 852-2000
Connors, LLP
Attorneys for Defendants,
Harnath B. Clerk, M D., P.C.
and Harnath B. Clerk, M D.
424 Main Street, Suite 1000
Buffalo, New York 14202
(716) 852-5533
The Tarantino Law Firm, LLP
Attorneys for Defendants,
Andrew Cappuccino, M D., Eric Dean, RPA-C
and Buffalo Spine Surgery, PLLC
14 Lafayette Square, Suite 1500
Buffalo, New York 14203
(716) 849-6500
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At a Special Term of the Supreme
Court, held in and for the County
30*
of Niagara on the of June,
2022.
FRANK A. SEDITA, III,JUSTICE PRESIDING
STATE OF NEW YORK
SUPREME COURT : NIAGARA COUNTY
THOMAS and CHERYL KAUSNER, Individually
and as Husband and Wife
Order
Plaintiffs,
v. Index No. E159518/2016
BUFFALO SPINE SURGERY, PLLC,
ANDREW CAPPUCCINO, M.D.,
ERIC DEAN, RPA-C,
HARNATH B. CLERK, M.D., P.C.,
HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
ROBERT E. LUTNICK, M.D., and
EASTERN NIAGARA RADIOLOGY AND
NUCLEAR MEDIClNE ASSOCIATES, P.C.
Defendants.
Upon defendants, Eastern Niagara Hospital, Inc. Robert Lutnick, M.D., Eastern
Niagara Radiology and Nuclear Medicine Associates, P.C.'s Notice of Motion (NYSCEF
#216), dated November 12, 2021, for summary judgment dismissing the Amended
Complaint and all cross-claims, the Affirmation of J. Mark Gruber, Esq. (NYSCEF
#217), dated November 15, 2021, with exhibits, incorporated therein by reference, and
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including Exhibits A-U provided to the Court on CD under separate cover, the
Affirmation of Douglas B. Moreland, M.D., FACS (NYSCEF #218), dated November 6,
9th
2021, and the Affidavit of Robert E. Lutnick, M.D. (NYSCEF #219), sworn to the day
of November, 2021, all in support of the motion;
Upon defendants, Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D.'s
Notice of Motion (NYSCEF #221), dated November 26, 2021, for summary judgment
dismissing the Amended Complaint and any and alleross-elaims, the Affidavit of Bryan
26*
P. Kroetsch, Esq. (NYSCEF #222), sworn to the day of November, 2021, with
26*
exhibits, the Affidavit of Martin Stallone, M.D. (NYSCEF #241), sworn to the day of
November, 2021, the Affirmation of Douglas Moreland, M.D., FACS, dated November
6, 2021, which was incorporated by reference into the motion, and the Statement of
Material Facts (NYSCEF #242), dated November 26, 2021, all in support of the motion;
4th
Upon the Affidavit of Brian P. Fitzgerald, Esq. (NYSCEF #244) sworn to the
day of April, 2022, with exhibit, in Opposition to the Motions by Defendants Harnath B.
Clerk, M.D., P.C., Harnath B. Clerk, M.D., Eastern Niagara Hospital, Inc., Robert E.
Lutnick M.D. and Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., the
Plaintiffs'
Affirmation of Expert Radiologist (NYSCEF #246) dated April 4, 2022, with
exhibits, in Opposition to the Motion for Summary Judgment by Defendants Robert E.
Lutnick, M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., and
Plaintiffs'
the Affirmation of Expert Neurologist (NYSCEF #254), dated April 4, 2022,
2
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with exhibits, in Opposition to the Motions by Defendants Harnath B. Clerk, M.D., P.C.,
Harnath B. Clerk, M.D., Eastern Niagara Hospital, Robert E. Lutnick, M.D., Eastern
Plaintiffs'
Niagara Radiology, and Nuclear Medicine Associates, P.C., Statement of
Materials Facts Pursuant to Rule 202.8-g, and Brian P. Fitzgerald, Esq.'s letter of April 4,
2022 to the Hon. Frank A. Sedita, I, J.S.C. (NYSCEF #259) enclosing unredacted
defendants'
expert Affirmations submitted in opposition to the motions as set forth
above;
Upon defendants, Eastern Niagara Hospital, Robert E. Lutnick, M.D. and Eastern
Niagara Radiology and Nuclear Medicine Associates, P.C.'s Statement of Material Facts
(NYSCEF #258), dated November 9, 2021; J. Mark Gruber, Esq.'s letter to the Hon.
Frank A. Sedita, IH, J.S.C. (NYSCEF #260), dated April 18, 2022, wherein Mr. Gruber
sought permission to exceed the word count pursuant to Rule 202-8-b(d) in his reply
papers; upon J. Mark Gruber, Esq s Reply Affirmation, (NYSCEF #261), dated April 22,
2022, with exhibit, in further support of the Motion by Eastern Niagara Hospital, Inc. and
upon J. Mark Gruber, Esq.'s Reply Affirmation, dated April 21, 2022, with exhibit,
(NYSCEF #263) in further support of the Motion by defendants Robert E. Lutnick, M.D.,
Eastern Niagara Radiology and Nuclear Medicine Associates, P.C.; and upon the Reply
25th
Affidavit of Bryan P. Kroetsch, Esq. (NYSCEF #265), sworn to the day of April,
2022, with exhibits, in further support of the motion by Harnath B. Clerk, M.D., and
Harnath B. Clerk, M.D., P.C.; and
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NYSCEF DOC. NO. 275 RECEIVED NYSCEF: 07/28/2022
The Court, having conducted oral argument by video conference via Microsoft
Teams on June 30, 2022, and upon the appearances of Brian P. Fitzgerald, Esq. (The
Fitzgerald Firm, P.C.) for the plaintiffs, J. Mark Gruber, Esq. (Roach, Brown, McCarthy
& Gruber, P.C.) for the defendants Eastern Niagara Hospital, Inc., Robert E. Lutnick,
M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., Bryan P.
Kroetsch, Esq. (Connors LLP) for the defendants Harnath B. Clerk, M.D., P.C. and
Harnath B. Clerk, M.D., and Erica R. Gasiewicz, Esq. (The Tarantino Law Firm, LLP)
for the defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric
Dean, RPA-C, and after hearing argument and after due deliberation, itis hereby
defendants'
ORDERED, that Motions for summary judgment are denied in
accordance with the rulings made by the Court as contained in the annexed transcript of
the proceedings of June 30, 2022; and is ithereby further
ORDERED, that any motion by plaintiffs with respect to any conflict issue as to
defendants Eastern Niagara IIospital, Inc., Robert E. Lutnick, M.D. and Eastern Niagara
Radiology and Nuclear Medicine Associates, P.C., if plaintiffs decide to bring said
motion, be filed on or before August 3, 2022, opposing papers by August 24, 2022,
plaintiffs'
reply papers by August 31, 2022, and with a scheduled return date of
September 7, 2022; and itis hereby further
ORDERED, that any motion by defendants with respect the Report of Medical
plaintiffs'
Examination by expert neurologist and expert radiologist, similarly be made,
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/ PlÆ
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filed and responded to on the same schedule as in the aragraph.
preceding
Hon. Frank . edita II, .S.C
JUL 2 5 2022
Enter.
5
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1 STATE OF NEW YORK
SUPREME COURT - PART II : COUNTY OF NIAGARA
2
3 THOMAS and CHERYL KAUSNER,
Individually and as Husband and Wife,
4 Plaintiffs,
5 -against- Index No. E159518/2016
Virtual Proceedings
6 BUFFALO SPINE SURGERY, PLLLC,
ANDREW CAPPUCCINO, M.D.,
7 ERIC DEAN, RPA-C,
HARNATH CLERK, M.D., P.C.,
8 HARNATH B. CLERK, M.D.,
EASTERN NIAGARA HOSPITAL, INC.,
9 ROBERT E. LUTNICK, M.D.,
EASTERN NIAGARA RADIOLOGY &
10 NUCLEAR MEDICINE ASSOCIATES, P.C.,
Defendants.
11
775 Third Street
12 Niagara Falls, New York
June 30, 2022
13
B e f o r e:
14
HONORABLE FRANK A. SEDITA, III
15 Supreme Court Justice
16 A p p e a r a n c e s:
17 BRIAN P. FITZGERALD, P.C.,
By: BRIAN P. FITZGERALD, ESQ.,
18 509 Liberty Building,
Buffalo, New York 14202,
19 Appearing for the Plaintiffs.
20 THE TARANTINO LAW FIRM, LLP,
By: ERICA GASIEWICZ, ESQ.,
21 1500 Rand Building,
Buffalo, New York 14203,
22 Appearing for the Defendants,
Buffalo Spine Surgery, PLLC,
23 Andrew Cappuccino, M.D.
and Eric Dean, RPA-C.
24
25
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1 A p p e a r a n c e s: (C o n t i n u e d)
2 CONNORS LLP
By: BRYAN KROETSCH, ESQ.,
3 1000 Liberty Building,
Buffalo, New York 14202,
4 Appearing for the Defendants,
Harnath Clerk, M.D.
5 and Harnath Clerk, M.D., P.C.
6 ROACH, BROWN, McCARTHY & GRUBER, P.C.,
By: J. MARK GRUBER, ESQ.,
7 1920 Liberty Building,
Buffalo, New York 14202,
8 Appearing for the Defendants,
Eastern Niagara Hospital, Inc.,
9 Robert E. Lutnick, M.D.
and Eastern Niagara Radiology &
10 Nuclear Medicine Associates, P.C.
11 AMY E. COGHLAN
Senior Court Reporter
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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3
KAUSNER vs. BUFFALO SPINE, ET AL.
1 THE COURT: The next matter before the Court is
2 Thomas Kausner and Cheryl Kausner vs. Buffalo Spine
3 Surgery, PLLC, Andrew Cappuccino, M.D., Eric Dean, RPA,
4 Harnath Clerk M.D., Eastern Niagara Hospital, Inc. and
5 Robert Lutnick, M.D., Index Number E159518/2016. Counsel,
6 would you note appearances for the record, please?
7 MR. FITZGERALD: Brian Fitzgerald for the
8 Kausners.
9 THE COURT: Go ahead.
10 MR. FITZGERALD: I'm sorry. Brian Fitzgerald
11 for the Kausners.
12 MR. KROETSCH: Bryan Kroetsch on behalf of Dr.
13 Clerk and his PC.
14 MR. GRUBER: Mark Gruber on behalf of Eastern
15 Niagara Hospital, Robert Lutnick, M.D., Eastern Niagara
16 Radiology & Nuclear Medicine Associates, P.C.
17 MS. GASIEWICZ: Erica Gasiewicz for Buffalo
18 Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric
19 Dean.
20 THE COURT: Counsel, spell your last name for
21 me, please.
22 MS. GASIEWICZ: Sure. G-A-S-I-E-W-I-C-Z.
23 THE COURT: Thank you. Okay. So a couple of
24 preliminary matters, basically the game plan. Number one,
25 recordation warnings. You are not permitted -- same rules
...
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4
KAUSNER vs. BUFFALO SPINE, ET AL.
1 apply as though we were in an in person proceeding. You
2 couldn't whip out your cell phone and start recording
3 what's going on in the courtroom and you can't do the same
4 thing on-line, so you are prohibited from any audio or
5 visual recording of these proceedings. If you do so, you
6 are in contempt of court. Please note that everything
7 that is said here today is being stenographically
8 transcribed by a professional court reporter. Secondly,
9 when you are not speaking, please mute. The Teams
10 platform works better this way. I'm crossing my fingers,
11 Mr. that -- we always seem to have difficulties
Gruber,
12 with your law firm for some reason on the Teams platform.
13 I don't know what it is. I hope whatever the problem was
14 is fixed.
15 Also, my process is to make a record, frame the
16 issues, invite you to make oral argument if you feel you
17 need to make oral argument. I'm familiar with your
18 papers, with your arguments, with the law. You don't need
19 to repeat what's in your papers. I'm gonna cap any oral
20 argument at ten minutes.
21 And, thus, without further ado, before the Court
22 are motions for summary judgment brought by Defendants
23 Eastern Niagara Hospital and Dr. Lutnick and Dr. Clerk.
24 The other named Defendants are not participants in the
25 pending motions.
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5
KAUSNER vs. BUFFALO SPINE, ET AL.
1 This is a med mal, medical malpractice case. By
2 way of background, on September 1st of 2015, Plaintiff
3 Thomas Kausner underwent a cervical surgery at Eastern
4 Niagara Hospital performed by Dr. Andrew Cappuccino, who
5 was assisted by Eric Dean, who apparently is a physician's
6 assistant.
7 On September 2nd of 2015, Dr. Cappuccino ordered
8 an MRI of the cervical spine. The MRI was completed at
9 Eastern Niagara Hospital by a radiology technician and the
10 films were reviewed by Dr. Lutnick, who was a radiologist.
11 Dr. Lutnick reported his findings to physician assistant
12 Eric Dean and Dr. Cappuccino. Following this report, Dr.
13 Cappuccino ordered more diagnostic imaging in the form
14 this time of an MRA. The MRA was conducted and a report
15 generated by Dr. Lutnick. It is alleged that throughout
16 September 2nd, 2015 and into September 3rd of 2015, that
17 Mr. Kausner was exhibiting signs of neurological decline
18 due to cervical cord compression. One of the symptoms was
19 an increase in blood pressure, which was monitored and
20 treated by Dr. Clerk at Eastern Niagara Hospital. On
21 September 3rd, 2015, Dr. Cappuccino ordered Plaintiff
22 transferred to Gates Vascular Institute to address the
23 spinal cord compression issues.
24 A lawsuit was filed, Answers were made,
25 discovery proceeded, so on, and so on. Here we are today
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6
KAUSNER vs. BUFFALO SPINE, ET AL.
1 for summary judgment motions.
2 In support of their motion for summary judgment,
3 Defendants Eastern Niagara Hospital and Dr. Lutnick submit
4 the attorney affirmation of J. Mark Gruber, along with 21
5 exhibits, including medical records and 18 deposition
6 transcripts, expert affirmation of Dr. Douglas Moreland,
7 who I guess is a neurosurgeon, and the expert affirmation
8 of Dr. Lutnick.
9 Defendants Eastern Niagara Hospital and Dr.
10 Lutnick principally contend that there was no deviation
11 from the accepted standards of care provided to Plaintiff
12 following his cervical spine surgery.
13 In support of his motion for summary judgment,
14 Dr. Clerk submits the attorney affirmation of Bryan
15 Kroetsch, along with 18 exhibits, including relevant
16 pleadings, medical records, deposition transcripts, and
17 the expert affirmation of Dr. Martin Stallone, who
18 purportedly specializes in internal medicine. Defendant
19 Clerk principally contends that he did not deviate from
20 the accepted standard of care provided to the Plaintiff
21 following his cervical spine surgery.
22 In the Plaintiff submits -- all
opposing motion,
23 the motions, Plaintiff submits the attorney affirmation of
24 Brian Fitzgerald, along with nine exhibits, including
25 medical records, deposition exhibits and some deposition
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7
KAUSNER vs. BUFFALO SPINE, ET AL.
1 testimony, the expert affirmation of an unnamed
2 radiologist and the expert affirmation of an unnamed
3 neurologist.
4 Plaintiff contends that Dr. Lutnick did not
5 adequately read the MRI and MRA films and did not
6 appreciate or communicate the medical emergency occurring
7 due to the spinal cord compression. Plaintiff
8 additionally contends essentially that Plaintiff was
9 exhibiting symptoms of neurological decline that were not
10 adequately treated or addressed by the Eastern Niagara
11 Hospital and its staff, and that Dr. Clerk's failure to
12 properly treat Mr. Kausner's increased blood pressure all
13 contributed to the injuries that Mr. Kausner alleges.
14 That is my summary. I would invite oral
15 argument. I'm not sure who was first in line, whether
16 that was you, Mr. Kroetsch, or you, Mr. Gruber. It
17 doesn't matter to me which one of you wants to go first,
18 but one of you can go first. And, again, you're capped at
19 ten minutes. Go ahead.
20 MR. GRUBER: Thank you, your Honor. Mark Gruber
21 on behalf of the hospital and Dr. Lutnick. We submit to
22 the Court that we've proven a prima facie case in support
23 of summary judgment in that the opposition to summary
24 judgment totally is insufficient
Preview
FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 STATE OF NEW YORK SUPREME COURT : COUNTY OF NIAGARA THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, Plaintiffs, -vs- NOTICE OF ENTRY BUFFALO SPINE SURGERY, PLLC Index No. El59518/2016 ANDREW CAPPUCCINO, M.D. ERIC DEAN, RPA-C HARNATH B. CLERK, M.D., P.C. HARNATH B. CLERK, M.D. EASTERN NIAGARA HOSPITAL ROBERT E. LUTNICK, M.D. EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDICINE ASSOCIATES, P.C. Defendants. PLEASE TAKE NOTICE, that an Order, of which the within is a copy, was duly granted in the 25th within-entitled action on the day of July, 2022 and duly entered in the Niagara County Clerk's Office on July 28, 2022. Dated: Buffalo, New York August 24, 2022 ROACH, BROWN, McCARTHY & GRUBER, P.C. By: J. Mark Gruber, Esq. Attorneys for Defendant, EASTERN NIAGARA HOSPITAL, INC., et al. 1920 Liberty Building Buffalo, New York 14202 (716) 852-0400 Mgruber@roachbrown.com To: The Fitzgerald Firm Attorney for Plaintiffs 424 Main Street, Suite 509 1 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 2 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 Buffalo, New York 14202 (716) 852-2000 Connors, LLP Attorneys for Defendants, Harnath B. Clerk, M D., P.C. and Harnath B. Clerk, M D. 424 Main Street, Suite 1000 Buffalo, New York 14202 (716) 852-5533 The Tarantino Law Firm, LLP Attorneys for Defendants, Andrew Cappuccino, M D., Eric Dean, RPA-C and Buffalo Spine Surgery, PLLC 14 Lafayette Square, Suite 1500 Buffalo, New York 14203 (716) 849-6500 3 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 4 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF INDEXNYSCEF: NO. E159518/2016 FILED:DOC. NO. 287 NIAGARA COUNTY CLERK 7 28 : 4 RECEIVED 08/24/2022 NYSCEF DOC. NO. 275 RECEIVED NYSCEF: 07/28/2022 At a Special Term of the Supreme Court, held in and for the County 30* of Niagara on the of June, 2022. FRANK A. SEDITA, III,JUSTICE PRESIDING STATE OF NEW YORK SUPREME COURT : NIAGARA COUNTY THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife Order Plaintiffs, v. Index No. E159518/2016 BUFFALO SPINE SURGERY, PLLC, ANDREW CAPPUCCINO, M.D., ERIC DEAN, RPA-C, HARNATH B. CLERK, M.D., P.C., HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., ROBERT E. LUTNICK, M.D., and EASTERN NIAGARA RADIOLOGY AND NUCLEAR MEDIClNE ASSOCIATES, P.C. Defendants. Upon defendants, Eastern Niagara Hospital, Inc. Robert Lutnick, M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C.'s Notice of Motion (NYSCEF #216), dated November 12, 2021, for summary judgment dismissing the Amended Complaint and all cross-claims, the Affirmation of J. Mark Gruber, Esq. (NYSCEF #217), dated November 15, 2021, with exhibits, incorporated therein by reference, and 1 of 5 of 425 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 6 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 INDEX NO. E159518/2016 FILEDDOC.: NYSCEF NIAGARA NO. 287 COUNTY CLERK 07 2 1 : 4 RECEIVED NYSCEF: 08/24/2022 NYSCEF DOC. No. 275 RECEIVED NYSCEF: 07/28/2022 including Exhibits A-U provided to the Court on CD under separate cover, the Affirmation of Douglas B. Moreland, M.D., FACS (NYSCEF #218), dated November 6, 9th 2021, and the Affidavit of Robert E. Lutnick, M.D. (NYSCEF #219), sworn to the day of November, 2021, all in support of the motion; Upon defendants, Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D.'s Notice of Motion (NYSCEF #221), dated November 26, 2021, for summary judgment dismissing the Amended Complaint and any and alleross-elaims, the Affidavit of Bryan 26* P. Kroetsch, Esq. (NYSCEF #222), sworn to the day of November, 2021, with 26* exhibits, the Affidavit of Martin Stallone, M.D. (NYSCEF #241), sworn to the day of November, 2021, the Affirmation of Douglas Moreland, M.D., FACS, dated November 6, 2021, which was incorporated by reference into the motion, and the Statement of Material Facts (NYSCEF #242), dated November 26, 2021, all in support of the motion; 4th Upon the Affidavit of Brian P. Fitzgerald, Esq. (NYSCEF #244) sworn to the day of April, 2022, with exhibit, in Opposition to the Motions by Defendants Harnath B. Clerk, M.D., P.C., Harnath B. Clerk, M.D., Eastern Niagara Hospital, Inc., Robert E. Lutnick M.D. and Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., the Plaintiffs' Affirmation of Expert Radiologist (NYSCEF #246) dated April 4, 2022, with exhibits, in Opposition to the Motion for Summary Judgment by Defendants Robert E. Lutnick, M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., and Plaintiffs' the Affirmation of Expert Neurologist (NYSCEF #254), dated April 4, 2022, 2 2 of 5 7 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 8 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF INDEXNYSCEF: NO. E159518/2016 FILEDDOC.: NO. 287 NIAGARA COUNTY CLERK 7 2 : 4 RECEIVED 08/24/2022 NYSCEF DOC. NO. 275 RECEIVED NYSCEF: 07/28/2022 with exhibits, in Opposition to the Motions by Defendants Harnath B. Clerk, M.D., P.C., Harnath B. Clerk, M.D., Eastern Niagara Hospital, Robert E. Lutnick, M.D., Eastern Plaintiffs' Niagara Radiology, and Nuclear Medicine Associates, P.C., Statement of Materials Facts Pursuant to Rule 202.8-g, and Brian P. Fitzgerald, Esq.'s letter of April 4, 2022 to the Hon. Frank A. Sedita, I, J.S.C. (NYSCEF #259) enclosing unredacted defendants' expert Affirmations submitted in opposition to the motions as set forth above; Upon defendants, Eastern Niagara Hospital, Robert E. Lutnick, M.D. and Eastern Niagara Radiology and Nuclear Medicine Associates, P.C.'s Statement of Material Facts (NYSCEF #258), dated November 9, 2021; J. Mark Gruber, Esq.'s letter to the Hon. Frank A. Sedita, IH, J.S.C. (NYSCEF #260), dated April 18, 2022, wherein Mr. Gruber sought permission to exceed the word count pursuant to Rule 202-8-b(d) in his reply papers; upon J. Mark Gruber, Esq s Reply Affirmation, (NYSCEF #261), dated April 22, 2022, with exhibit, in further support of the Motion by Eastern Niagara Hospital, Inc. and upon J. Mark Gruber, Esq.'s Reply Affirmation, dated April 21, 2022, with exhibit, (NYSCEF #263) in further support of the Motion by defendants Robert E. Lutnick, M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C.; and upon the Reply 25th Affidavit of Bryan P. Kroetsch, Esq. (NYSCEF #265), sworn to the day of April, 2022, with exhibits, in further support of the motion by Harnath B. Clerk, M.D., and Harnath B. Clerk, M.D., P.C.; and 3 3 of 9 of 425 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 10 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVEDINDEXNYSCEF: NO. 08/24/2022 E159518/2016 FILED: NIAGARA COUNTY CLERK 07/28/2022 12: 04 PM NYSCEF DOC. NO. 275 RECEIVED NYSCEF: 07/28/2022 The Court, having conducted oral argument by video conference via Microsoft Teams on June 30, 2022, and upon the appearances of Brian P. Fitzgerald, Esq. (The Fitzgerald Firm, P.C.) for the plaintiffs, J. Mark Gruber, Esq. (Roach, Brown, McCarthy & Gruber, P.C.) for the defendants Eastern Niagara Hospital, Inc., Robert E. Lutnick, M.D., Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., Bryan P. Kroetsch, Esq. (Connors LLP) for the defendants Harnath B. Clerk, M.D., P.C. and Harnath B. Clerk, M.D., and Erica R. Gasiewicz, Esq. (The Tarantino Law Firm, LLP) for the defendants Buffalo Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric Dean, RPA-C, and after hearing argument and after due deliberation, itis hereby defendants' ORDERED, that Motions for summary judgment are denied in accordance with the rulings made by the Court as contained in the annexed transcript of the proceedings of June 30, 2022; and is ithereby further ORDERED, that any motion by plaintiffs with respect to any conflict issue as to defendants Eastern Niagara IIospital, Inc., Robert E. Lutnick, M.D. and Eastern Niagara Radiology and Nuclear Medicine Associates, P.C., if plaintiffs decide to bring said motion, be filed on or before August 3, 2022, opposing papers by August 24, 2022, plaintiffs' reply papers by August 31, 2022, and with a scheduled return date of September 7, 2022; and itis hereby further ORDERED, that any motion by defendants with respect the Report of Medical plaintiffs' Examination by expert neurologist and expert radiologist, similarly be made, 4 4 of 11 of 425 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 12 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEFFILED NIAGARA DOC. : NO. 287 COUNTY CLERK 07/ 28 2022 12:04 RECEIVED INDEXNYSCEF: NO. E159518/2016 08/24/2022 / PlÆ NYSCEF DOC. NO. 275 RECEIVED NYSCEF: 07/28/2022 filed and responded to on the same schedule as in the aragraph. preceding Hon. Frank . edita II, .S.C JUL 2 5 2022 Enter. 5 5 of 5 13 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 14 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 1 STATE OF NEW YORK SUPREME COURT - PART II : COUNTY OF NIAGARA 2 3 THOMAS and CHERYL KAUSNER, Individually and as Husband and Wife, 4 Plaintiffs, 5 -against- Index No. E159518/2016 Virtual Proceedings 6 BUFFALO SPINE SURGERY, PLLLC, ANDREW CAPPUCCINO, M.D., 7 ERIC DEAN, RPA-C, HARNATH CLERK, M.D., P.C., 8 HARNATH B. CLERK, M.D., EASTERN NIAGARA HOSPITAL, INC., 9 ROBERT E. LUTNICK, M.D., EASTERN NIAGARA RADIOLOGY & 10 NUCLEAR MEDICINE ASSOCIATES, P.C., Defendants. 11 775 Third Street 12 Niagara Falls, New York June 30, 2022 13 B e f o r e: 14 HONORABLE FRANK A. SEDITA, III 15 Supreme Court Justice 16 A p p e a r a n c e s: 17 BRIAN P. FITZGERALD, P.C., By: BRIAN P. FITZGERALD, ESQ., 18 509 Liberty Building, Buffalo, New York 14202, 19 Appearing for the Plaintiffs. 20 THE TARANTINO LAW FIRM, LLP, By: ERICA GASIEWICZ, ESQ., 21 1500 Rand Building, Buffalo, New York 14203, 22 Appearing for the Defendants, Buffalo Spine Surgery, PLLC, 23 Andrew Cappuccino, M.D. and Eric Dean, RPA-C. 24 25 15 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 1 A p p e a r a n c e s: (C o n t i n u e d) 2 CONNORS LLP By: BRYAN KROETSCH, ESQ., 3 1000 Liberty Building, Buffalo, New York 14202, 4 Appearing for the Defendants, Harnath Clerk, M.D. 5 and Harnath Clerk, M.D., P.C. 6 ROACH, BROWN, McCARTHY & GRUBER, P.C., By: J. MARK GRUBER, ESQ., 7 1920 Liberty Building, Buffalo, New York 14202, 8 Appearing for the Defendants, Eastern Niagara Hospital, Inc., 9 Robert E. Lutnick, M.D. and Eastern Niagara Radiology & 10 Nuclear Medicine Associates, P.C. 11 AMY E. COGHLAN Senior Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 16 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 3 KAUSNER vs. BUFFALO SPINE, ET AL. 1 THE COURT: The next matter before the Court is 2 Thomas Kausner and Cheryl Kausner vs. Buffalo Spine 3 Surgery, PLLC, Andrew Cappuccino, M.D., Eric Dean, RPA, 4 Harnath Clerk M.D., Eastern Niagara Hospital, Inc. and 5 Robert Lutnick, M.D., Index Number E159518/2016. Counsel, 6 would you note appearances for the record, please? 7 MR. FITZGERALD: Brian Fitzgerald for the 8 Kausners. 9 THE COURT: Go ahead. 10 MR. FITZGERALD: I'm sorry. Brian Fitzgerald 11 for the Kausners. 12 MR. KROETSCH: Bryan Kroetsch on behalf of Dr. 13 Clerk and his PC. 14 MR. GRUBER: Mark Gruber on behalf of Eastern 15 Niagara Hospital, Robert Lutnick, M.D., Eastern Niagara 16 Radiology & Nuclear Medicine Associates, P.C. 17 MS. GASIEWICZ: Erica Gasiewicz for Buffalo 18 Spine Surgery, PLLC, Andrew Cappuccino, M.D. and Eric 19 Dean. 20 THE COURT: Counsel, spell your last name for 21 me, please. 22 MS. GASIEWICZ: Sure. G-A-S-I-E-W-I-C-Z. 23 THE COURT: Thank you. Okay. So a couple of 24 preliminary matters, basically the game plan. Number one, 25 recordation warnings. You are not permitted -- same rules ... 17 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 4 KAUSNER vs. BUFFALO SPINE, ET AL. 1 apply as though we were in an in person proceeding. You 2 couldn't whip out your cell phone and start recording 3 what's going on in the courtroom and you can't do the same 4 thing on-line, so you are prohibited from any audio or 5 visual recording of these proceedings. If you do so, you 6 are in contempt of court. Please note that everything 7 that is said here today is being stenographically 8 transcribed by a professional court reporter. Secondly, 9 when you are not speaking, please mute. The Teams 10 platform works better this way. I'm crossing my fingers, 11 Mr. that -- we always seem to have difficulties Gruber, 12 with your law firm for some reason on the Teams platform. 13 I don't know what it is. I hope whatever the problem was 14 is fixed. 15 Also, my process is to make a record, frame the 16 issues, invite you to make oral argument if you feel you 17 need to make oral argument. I'm familiar with your 18 papers, with your arguments, with the law. You don't need 19 to repeat what's in your papers. I'm gonna cap any oral 20 argument at ten minutes. 21 And, thus, without further ado, before the Court 22 are motions for summary judgment brought by Defendants 23 Eastern Niagara Hospital and Dr. Lutnick and Dr. Clerk. 24 The other named Defendants are not participants in the 25 pending motions. 18 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 5 KAUSNER vs. BUFFALO SPINE, ET AL. 1 This is a med mal, medical malpractice case. By 2 way of background, on September 1st of 2015, Plaintiff 3 Thomas Kausner underwent a cervical surgery at Eastern 4 Niagara Hospital performed by Dr. Andrew Cappuccino, who 5 was assisted by Eric Dean, who apparently is a physician's 6 assistant. 7 On September 2nd of 2015, Dr. Cappuccino ordered 8 an MRI of the cervical spine. The MRI was completed at 9 Eastern Niagara Hospital by a radiology technician and the 10 films were reviewed by Dr. Lutnick, who was a radiologist. 11 Dr. Lutnick reported his findings to physician assistant 12 Eric Dean and Dr. Cappuccino. Following this report, Dr. 13 Cappuccino ordered more diagnostic imaging in the form 14 this time of an MRA. The MRA was conducted and a report 15 generated by Dr. Lutnick. It is alleged that throughout 16 September 2nd, 2015 and into September 3rd of 2015, that 17 Mr. Kausner was exhibiting signs of neurological decline 18 due to cervical cord compression. One of the symptoms was 19 an increase in blood pressure, which was monitored and 20 treated by Dr. Clerk at Eastern Niagara Hospital. On 21 September 3rd, 2015, Dr. Cappuccino ordered Plaintiff 22 transferred to Gates Vascular Institute to address the 23 spinal cord compression issues. 24 A lawsuit was filed, Answers were made, 25 discovery proceeded, so on, and so on. Here we are today 19 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 6 KAUSNER vs. BUFFALO SPINE, ET AL. 1 for summary judgment motions. 2 In support of their motion for summary judgment, 3 Defendants Eastern Niagara Hospital and Dr. Lutnick submit 4 the attorney affirmation of J. Mark Gruber, along with 21 5 exhibits, including medical records and 18 deposition 6 transcripts, expert affirmation of Dr. Douglas Moreland, 7 who I guess is a neurosurgeon, and the expert affirmation 8 of Dr. Lutnick. 9 Defendants Eastern Niagara Hospital and Dr. 10 Lutnick principally contend that there was no deviation 11 from the accepted standards of care provided to Plaintiff 12 following his cervical spine surgery. 13 In support of his motion for summary judgment, 14 Dr. Clerk submits the attorney affirmation of Bryan 15 Kroetsch, along with 18 exhibits, including relevant 16 pleadings, medical records, deposition transcripts, and 17 the expert affirmation of Dr. Martin Stallone, who 18 purportedly specializes in internal medicine. Defendant 19 Clerk principally contends that he did not deviate from 20 the accepted standard of care provided to the Plaintiff 21 following his cervical spine surgery. 22 In the Plaintiff submits -- all opposing motion, 23 the motions, Plaintiff submits the attorney affirmation of 24 Brian Fitzgerald, along with nine exhibits, including 25 medical records, deposition exhibits and some deposition 20 of 42 FILED: NIAGARA COUNTY CLERK 08/24/2022 01:26 PM INDEX NO. E159518/2016 NYSCEF DOC. NO. 287 RECEIVED NYSCEF: 08/24/2022 7 KAUSNER vs. BUFFALO SPINE, ET AL. 1 testimony, the expert affirmation of an unnamed 2 radiologist and the expert affirmation of an unnamed 3 neurologist. 4 Plaintiff contends that Dr. Lutnick did not 5 adequately read the MRI and MRA films and did not 6 appreciate or communicate the medical emergency occurring 7 due to the spinal cord compression. Plaintiff 8 additionally contends essentially that Plaintiff was 9 exhibiting symptoms of neurological decline that were not 10 adequately treated or addressed by the Eastern Niagara 11 Hospital and its staff, and that Dr. Clerk's failure to 12 properly treat Mr. Kausner's increased blood pressure all 13 contributed to the injuries that Mr. Kausner alleges. 14 That is my summary. I would invite oral 15 argument. I'm not sure who was first in line, whether 16 that was you, Mr. Kroetsch, or you, Mr. Gruber. It 17 doesn't matter to me which one of you wants to go first, 18 but one of you can go first. And, again, you're capped at 19 ten minutes. Go ahead. 20 MR. GRUBER: Thank you, your Honor. Mark Gruber 21 on behalf of the hospital and Dr. Lutnick. We submit to 22 the Court that we've proven a prima facie case in support 23 of summary judgment in that the opposition to summary 24 judgment totally is insufficient