Preview
FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012
NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF RICHMOND
ROBERT VALENTI,
(NYSCEF CASE)
Plaintiff,
Index No. 150116/2012
against
NOTICE ENTRY
- -
OF
JOHN J. GADOMSKI, M.D., SHIMON OAMI, M_D.,
PATRICIA C. MCCORMACK, M.D., PATRICIA C.
McCORMACK, M.D., PLLC; and. PATRICIA C.
McCORMACK, M.D., P.C.,
Defendants.
PLEASE TAKE NOTICE that appended hereto is a true copy of a Decision and
Order of the Supreme Court of the State of New York, Appellate Division: Second Judicial
Department, dated and entered in the Office of the Clerk of the Appellate Division: Second
Judicial Department on March 2, 2022.
Dated: Westchester, New York
March 2, 2022
Yours, etc., 4 « f
Todd B. Sherman
The Law Firm of Ravi Batra, P.C.
Attorneysfor Plaintiff-Appellant Robert Valenti
Westchester Office -
Echo Law
11 Echo Bay Drive
New Rochelle, NY 10805
(212) 545-1993
E-mail: todd@ravibatralaw.com
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To:
Clerk of the Court (Via NYSCEF)
Richmond County Supreme Court
26 Central Avenue
Staten Island, NY 10301
Marshall Dennehey Warner Coleman & Goggin, P.C. (Via NYSCEF)
Attorneysfor Defendant John J. Gadomski, M.D.
287 Bowman Avenue, Suite 404
Purchase, NY 10577
(914) 977-7300; Fax:914-977-7301
E-mail:jpconnors@mdweg.com
sshaselbarth@mdwceg.com
jjhare@mdweg.com
Keller, O'Reilly & Watson, P.C. (Via NYSCEF)
Attorneysfor Defendant Shimon Oami, M.D.
242 Crossways Park West
Woodbury, NY 11797
(516) 496-1919; Fax: (516) 496-9791
E-Mail: swatson@kowlaw.com
acutone@kowlaw.com
Amabile & Erman, P.C. (Via NYSCEF)
Attorneysfor Defendant Patricia C. McCormack, MD.,
Patricia C. McCormack,, M.D., PLLC,
and Patricia C. McCormack,, MD., P.C.
1000 South Avenue
Staten Island, NY 10314
(718) 370-7030; Fax: (718) 370-3656
E-Mail: jerman@amabile-erman.com
ssteinfeld@amabile-erman.com
2
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Supreme Court of the State of New York
Appellate Bivuision: Second Judicial Department
D68579
T/htr
AD3d Argued -
December 10, 2021
COLLEEN D. DUFFY, J.P.
ANGELA G. IANNACCI
JOSEPH J. MALTESE
WILLIAM G. FORD, JJ.
2017-00682 DECISION & ORDER
Robert Valenti, appellant, v John J. Gadomski, etc.,
et al., respondents.
(Index No. 150116/12)
Law Firm of Ravi Batra, P.C., New York, NY (Todd B. Sherman of counsel), for
appellant.
Marshall Dennehey Warner Coleman & Goggin, P.C., Purchase, NY (James P.
Connors, John J.Hare, and Shane Haselbarth of counsel), for respondent John J.
Gadomski.
Keller O'Reilly & Watson, P.C., Woodbury, NY (Angela A. Cutone and Scott
Watson of counsel), for respondent Shimon Oami.
Amabile & Erman, P.C., Staten Island, NY (Shari D. Steinfeld of counsel), for
respondents Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and
Patricia C.McCormack, M.D., P.C.
In an action to recover damages for medical malpractice, the plaintiff appeals from
a corrected judgment of the Supreme Court, Richmond County (Philip G. Minardo, J.), entered May
16, 2017. The corrected judgment, insofar as appealed from, in effect, upon an order of the same
court (Charles M. Troia, J.) dated December 28, 2015, denying the motion of the defendant John J.
Gadomski for summary judgment dismissing the amended complaint insofar as asserted against him,
and upon a jury verdict in favor of the defendants John J. Gadomski, Shimon Oami, Patricia C.
McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C. McCormack, M.D., P.C., and
against the plaintiff on the issue of liability, isin favor of those defendants and against the plaintiff
dismissing the amended complaint insofar as asserted against those defendants.
March 2, 2022 Page 1.
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ORDERED that on the Court's own motion, the notice of appeal from a judgment
entered December 21, 2016, is deemed to be a premature notice of appeal from the corrected
judgment (see CPLR 5520[c]); and itis further,
ORDERED that the corrected judgment is reversed insofar as appealed from, on the
law and in the exercise of discretion, the amended complaint insofar as asserted against the
defendants John J. Gadomski, Shimon Oami, Patricia C. McCormack, Patricia C. McCormack,
M.D., PLLC, and Patricia C. McCormack, M.D., P.C., isreinstated, and the matter isremitted to the
Supreme Court, Richmond County, for a new trial before a different Justice; and itis further,
ORDERED that one bill of costs is awarded to the plaintiff, payable by the
respondents appearing separately and filing separate briefs.
In March 2012, the plaintiff commenced this action to recover damages for medical
malpractice against the defendants John J. Gadomski, Patricia C. McCormack, McCormack's
medical practices, and the defendant Shimon Oami (hereinafter collectively the defendants), among
others, alleging that the defendants deviated from accepted medical practice by failing to properly
and timely diagnose skin cancer on his leftfoot, causing him to undergo amputation of the fifthtoe
of that foot.
As isrelevant to thisappeal, Gadomski moved for summary judgment dismissing the
amended complaint and allcross claims insofar as asserted against him. In an order dated December
the Supreme Court denied Gadomski's motion. Gadomski appealed (see Valenti v
_ _
28, 2015,
Gadomski, AD3d [Appellate Division Docket No. 2016-00626; decided herewith]).
Thereafter, following a jury trial,the jury returned a verdict in favor of the defendants
and against the plaintiff on the issue of liability, finding that none of the defendants deviated from
accepted medical practice during their treatment of the plaintiff's skin condition. The Supreme
Court then entered a corrected judgment, inter alia, in favor of the defendants and against the
plaintiff dismissing the amended complaint insofar as asserted against them. The plaintiff appeals.
As an initial matter, the Supreme Court properly denied Gadomsky's motion for
summary judgment dismissing the amended complaint and all cross claims insofar as asserted
against him. "In order to establish the liability of a physician for medical malpractice, a plaintiff
must prove that the physician deviated or departed from accepted community standards of practice,
injuries"
and that such departure was a proximate cause of the plaintiff's (Maestri v Pasha, 198
AD3d 632, 633-634 [internal quotation marks omitted]; see N.S. v Freedman, 198 AD3d 702, 703).
"'A defendant seeking summary judgment in a medical malpractice action must make a prima facie
showing either that he or she did not depart from the accepted standard of care or that any departure
injuries'"
was not a proximate cause of the plaintiff's (Maestri v Pasha, 198 AD3d at 634, quoting
M.C. v Huntington Hosp., 175 AD3d 578, 579). "Once a defendant has made such a showing, the
burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing
physician"
by the defendant (N.S. v Freedman, 198 AD3d at 703 [internal quotation marks omitted]).
Although Gadomski established his prima facie entitlement to judgment as a matter
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of law by submitting, among other things, the plaintiff's medical records and the affirmations of his
two medical experts, a board certified dermatologist and a board certified dermatologist and
dermatopathologist, who both opined that the care and treatment Gadomski rendered to the plaintiff
did not deviate from the accepted standards of medical care and that such treatment was not a
proximate cause of the plaintiffs alleged injuries (see N.S. Freedman, 198 AD3d at 703; Maestri
v Pasha, 198 AD3d at 634), in opposition, the plaintiff raised triable issues of fact. The plaintiff
submitted an affidavit ofhis medical expert, a board certified pathologist, which raised triable issues
of fact as to whether Gadomski departed from good and accepted care and whether such alleged
departures were a proximate cause of the plaintiffs injuries (see N.S. Freedman, 198 AD3d at 703;
Maestri v Pasha, 198 AD3d at 634).
With respect to the judgment, after the jury verdict, in favor of the defendants and
against the plaintiff dismissing the amended complaint insofar as asserted against them, although the
issue is unpreserved for appellate review, the verdict must be set aside and the matter remitted for
a new trial in the interest of justice since improper comments by the Supreme Court and opposing
counsel deprived the plaintiff of a fair trial and may have unduly influenced the jury (see CPLR
4404(a); see e.g. loffe v Seruya, 134 AD3d 993, 995-996; Ortiz v Jaramillo, 84 AD3d 766, 766).
""TL]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel
or the trial court'" (lofe
ife v Seruya, 134 AD3d at 995, quoting Rodriguez v City of New York, 67
AD3d 884, 886). A trial court should at all times maintain an impartial attitude and exercise a high
eee
degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the
proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to
effectjustice'" Uloffe v Seruya, 134 AD3d at 996, quoting DeCrescenzo v Gonzalez, 46 AD3d 607,
608-609).
Here, the Supreme Court's repeated prejudicial comments and interjections
prejudiced the plaintiff. For example, the court barred the plaintiff's counsel from referring to the
growth at issue on the plaintiffs left foot as a tumor, ordered that the growth be referred to as a wart,
and continued to refer to it as a wart through the trial. Thus, the court, in effect, determined a pivotal
issue of fact that was properly for the jury to resolve (see e.g. Butler vy
New York City Hous. Auth.,
26 AD3d 352, 353). In addition, the court opined multiple times before the jury that there was no
proof that the plaintiff was misdiagnosed by the defendants, despite testimony by the plaintiff's
expert to the contrary which had already been elicited. Although the court later directed the jury to
disregard its remarks, the instruction was not sufficient to cure the prejudice caused by its
improvident comments and interjections (see Cohn v Meyers, 125 AD2d 524, 527-529; see e.g.
Mercedes v Amusements ofAm 160 AD2d 630, 631-632).
The comments of Oami's counsel also prejudiced the plaintiff. Oami's counsel made
multiple improper and inflammatory comments about the relationship between counsel for the
plaintiff and the plaintiffs expert pathologist during the cross examination of that expert and during
his summation to the jury on behalfof Oami. Contrary to the Supreme Court's determination, these
remarks were so inflammatory and unduly prejudicial as to have deprived the plaintiff of a fair trial
(see Nieves v Clove Lakes Health Care & Rehabilitation, Inc., 179 AD3d 938, 940-941; Rodriguez
v City of New York, 67 AD3d at 885-886).
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The record reflects that the cumulative effect of the Supreme Court's comments and
interjections, as well as those of counsel for Oami, deprived the plaintiff of a fair trial (see Joffe v
Seruya, 134 AD3d at996; Rodriguez v City of New York, 67 AD3d at886-887). Accordingly, under
the circumstances of this case, a new trial is warranted, and the matter is remitted to the Supreme
Court, Richmond County, for a new trial before a different Justice (see Troyano v Burris, 196 AD3d
525, 526).
In light of our determination, we need not reach the plaintiff s remaining contentions.
DUFFY, J.P., IANNACCI, MALTESE and FORD, JJ., concur.
ENTER:
1
Maria T. Fasulo
Clerk of the Court
March 2, 2022 Page 4.
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Preview
FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF RICHMOND ROBERT VALENTI, (NYSCEF CASE) Plaintiff, Index No. 150116/2012 against NOTICE ENTRY - - OF JOHN J. GADOMSKI, M.D., SHIMON OAMI, M_D., PATRICIA C. MCCORMACK, M.D., PATRICIA C. McCORMACK, M.D., PLLC; and. PATRICIA C. McCORMACK, M.D., P.C., Defendants. PLEASE TAKE NOTICE that appended hereto is a true copy of a Decision and Order of the Supreme Court of the State of New York, Appellate Division: Second Judicial Department, dated and entered in the Office of the Clerk of the Appellate Division: Second Judicial Department on March 2, 2022. Dated: Westchester, New York March 2, 2022 Yours, etc., 4 « f Todd B. Sherman The Law Firm of Ravi Batra, P.C. Attorneysfor Plaintiff-Appellant Robert Valenti Westchester Office - Echo Law 11 Echo Bay Drive New Rochelle, NY 10805 (212) 545-1993 E-mail: todd@ravibatralaw.com 1 of 6 FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 To: Clerk of the Court (Via NYSCEF) Richmond County Supreme Court 26 Central Avenue Staten Island, NY 10301 Marshall Dennehey Warner Coleman & Goggin, P.C. (Via NYSCEF) Attorneysfor Defendant John J. Gadomski, M.D. 287 Bowman Avenue, Suite 404 Purchase, NY 10577 (914) 977-7300; Fax:914-977-7301 E-mail:jpconnors@mdweg.com sshaselbarth@mdwceg.com jjhare@mdweg.com Keller, O'Reilly & Watson, P.C. (Via NYSCEF) Attorneysfor Defendant Shimon Oami, M.D. 242 Crossways Park West Woodbury, NY 11797 (516) 496-1919; Fax: (516) 496-9791 E-Mail: swatson@kowlaw.com acutone@kowlaw.com Amabile & Erman, P.C. (Via NYSCEF) Attorneysfor Defendant Patricia C. McCormack, MD., Patricia C. McCormack,, M.D., PLLC, and Patricia C. McCormack,, MD., P.C. 1000 South Avenue Staten Island, NY 10314 (718) 370-7030; Fax: (718) 370-3656 E-Mail: jerman@amabile-erman.com ssteinfeld@amabile-erman.com 2 2 of 6 FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 Supreme Court of the State of New York Appellate Bivuision: Second Judicial Department D68579 T/htr AD3d Argued - December 10, 2021 COLLEEN D. DUFFY, J.P. ANGELA G. IANNACCI JOSEPH J. MALTESE WILLIAM G. FORD, JJ. 2017-00682 DECISION & ORDER Robert Valenti, appellant, v John J. Gadomski, etc., et al., respondents. (Index No. 150116/12) Law Firm of Ravi Batra, P.C., New York, NY (Todd B. Sherman of counsel), for appellant. Marshall Dennehey Warner Coleman & Goggin, P.C., Purchase, NY (James P. Connors, John J.Hare, and Shane Haselbarth of counsel), for respondent John J. Gadomski. Keller O'Reilly & Watson, P.C., Woodbury, NY (Angela A. Cutone and Scott Watson of counsel), for respondent Shimon Oami. Amabile & Erman, P.C., Staten Island, NY (Shari D. Steinfeld of counsel), for respondents Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C.McCormack, M.D., P.C. In an action to recover damages for medical malpractice, the plaintiff appeals from a corrected judgment of the Supreme Court, Richmond County (Philip G. Minardo, J.), entered May 16, 2017. The corrected judgment, insofar as appealed from, in effect, upon an order of the same court (Charles M. Troia, J.) dated December 28, 2015, denying the motion of the defendant John J. Gadomski for summary judgment dismissing the amended complaint insofar as asserted against him, and upon a jury verdict in favor of the defendants John J. Gadomski, Shimon Oami, Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C. McCormack, M.D., P.C., and against the plaintiff on the issue of liability, isin favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants. March 2, 2022 Page 1. VALENTI v GADOMSKI 3 of 6 FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 ORDERED that on the Court's own motion, the notice of appeal from a judgment entered December 21, 2016, is deemed to be a premature notice of appeal from the corrected judgment (see CPLR 5520[c]); and itis further, ORDERED that the corrected judgment is reversed insofar as appealed from, on the law and in the exercise of discretion, the amended complaint insofar as asserted against the defendants John J. Gadomski, Shimon Oami, Patricia C. McCormack, Patricia C. McCormack, M.D., PLLC, and Patricia C. McCormack, M.D., P.C., isreinstated, and the matter isremitted to the Supreme Court, Richmond County, for a new trial before a different Justice; and itis further, ORDERED that one bill of costs is awarded to the plaintiff, payable by the respondents appearing separately and filing separate briefs. In March 2012, the plaintiff commenced this action to recover damages for medical malpractice against the defendants John J. Gadomski, Patricia C. McCormack, McCormack's medical practices, and the defendant Shimon Oami (hereinafter collectively the defendants), among others, alleging that the defendants deviated from accepted medical practice by failing to properly and timely diagnose skin cancer on his leftfoot, causing him to undergo amputation of the fifthtoe of that foot. As isrelevant to thisappeal, Gadomski moved for summary judgment dismissing the amended complaint and allcross claims insofar as asserted against him. In an order dated December the Supreme Court denied Gadomski's motion. Gadomski appealed (see Valenti v _ _ 28, 2015, Gadomski, AD3d [Appellate Division Docket No. 2016-00626; decided herewith]). Thereafter, following a jury trial,the jury returned a verdict in favor of the defendants and against the plaintiff on the issue of liability, finding that none of the defendants deviated from accepted medical practice during their treatment of the plaintiff's skin condition. The Supreme Court then entered a corrected judgment, inter alia, in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against them. The plaintiff appeals. As an initial matter, the Supreme Court properly denied Gadomsky's motion for summary judgment dismissing the amended complaint and all cross claims insofar as asserted against him. "In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, injuries" and that such departure was a proximate cause of the plaintiff's (Maestri v Pasha, 198 AD3d 632, 633-634 [internal quotation marks omitted]; see N.S. v Freedman, 198 AD3d 702, 703). "'A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure injuries'" was not a proximate cause of the plaintiff's (Maestri v Pasha, 198 AD3d at 634, quoting M.C. v Huntington Hosp., 175 AD3d 578, 579). "Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima facie showing physician" by the defendant (N.S. v Freedman, 198 AD3d at 703 [internal quotation marks omitted]). Although Gadomski established his prima facie entitlement to judgment as a matter March 2, 2022 Page 2. VALENTI v GADOMSKI 4 of 6 FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 of law by submitting, among other things, the plaintiff's medical records and the affirmations of his two medical experts, a board certified dermatologist and a board certified dermatologist and dermatopathologist, who both opined that the care and treatment Gadomski rendered to the plaintiff did not deviate from the accepted standards of medical care and that such treatment was not a proximate cause of the plaintiffs alleged injuries (see N.S. Freedman, 198 AD3d at 703; Maestri v Pasha, 198 AD3d at 634), in opposition, the plaintiff raised triable issues of fact. The plaintiff submitted an affidavit ofhis medical expert, a board certified pathologist, which raised triable issues of fact as to whether Gadomski departed from good and accepted care and whether such alleged departures were a proximate cause of the plaintiffs injuries (see N.S. Freedman, 198 AD3d at 703; Maestri v Pasha, 198 AD3d at 634). With respect to the judgment, after the jury verdict, in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against them, although the issue is unpreserved for appellate review, the verdict must be set aside and the matter remitted for a new trial in the interest of justice since improper comments by the Supreme Court and opposing counsel deprived the plaintiff of a fair trial and may have unduly influenced the jury (see CPLR 4404(a); see e.g. loffe v Seruya, 134 AD3d 993, 995-996; Ortiz v Jaramillo, 84 AD3d 766, 766). ""TL]itigants are entitled, as a matter of law, to a fair trial free from improper comments by counsel or the trial court'" (lofe ife v Seruya, 134 AD3d at 995, quoting Rodriguez v City of New York, 67 AD3d 884, 886). A trial court should at all times maintain an impartial attitude and exercise a high eee degree of patience and forebearance. A trial judge may not so far inject himself [or herself] into the proceedings that the jury could not review the case in the calm and untrammeled spirit necessary to effectjustice'" Uloffe v Seruya, 134 AD3d at 996, quoting DeCrescenzo v Gonzalez, 46 AD3d 607, 608-609). Here, the Supreme Court's repeated prejudicial comments and interjections prejudiced the plaintiff. For example, the court barred the plaintiff's counsel from referring to the growth at issue on the plaintiffs left foot as a tumor, ordered that the growth be referred to as a wart, and continued to refer to it as a wart through the trial. Thus, the court, in effect, determined a pivotal issue of fact that was properly for the jury to resolve (see e.g. Butler vy New York City Hous. Auth., 26 AD3d 352, 353). In addition, the court opined multiple times before the jury that there was no proof that the plaintiff was misdiagnosed by the defendants, despite testimony by the plaintiff's expert to the contrary which had already been elicited. Although the court later directed the jury to disregard its remarks, the instruction was not sufficient to cure the prejudice caused by its improvident comments and interjections (see Cohn v Meyers, 125 AD2d 524, 527-529; see e.g. Mercedes v Amusements ofAm 160 AD2d 630, 631-632). The comments of Oami's counsel also prejudiced the plaintiff. Oami's counsel made multiple improper and inflammatory comments about the relationship between counsel for the plaintiff and the plaintiffs expert pathologist during the cross examination of that expert and during his summation to the jury on behalfof Oami. Contrary to the Supreme Court's determination, these remarks were so inflammatory and unduly prejudicial as to have deprived the plaintiff of a fair trial (see Nieves v Clove Lakes Health Care & Rehabilitation, Inc., 179 AD3d 938, 940-941; Rodriguez v City of New York, 67 AD3d at 885-886). March 2, 2022 Page 3. VALENTI v GADOMSKI 5 of 6 FILED: RICHMOND COUNTY CLERK 03/02/2022 03:01 PM INDEX NO. 150116/2012 NYSCEF DOC. NO. 331 RECEIVED NYSCEF: 03/02/2022 The record reflects that the cumulative effect of the Supreme Court's comments and interjections, as well as those of counsel for Oami, deprived the plaintiff of a fair trial (see Joffe v Seruya, 134 AD3d at996; Rodriguez v City of New York, 67 AD3d at886-887). Accordingly, under the circumstances of this case, a new trial is warranted, and the matter is remitted to the Supreme Court, Richmond County, for a new trial before a different Justice (see Troyano v Burris, 196 AD3d 525, 526). In light of our determination, we need not reach the plaintiff s remaining contentions. DUFFY, J.P., IANNACCI, MALTESE and FORD, JJ., concur. ENTER: 1 Maria T. Fasulo Clerk of the Court March 2, 2022 Page 4. VALENTI v GADOMSKI 6 of 6