Matos v. Chefitz

126 A.D.3d 536, 5 N.Y.S.3d 424

Opinion

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered February 11, 2014, which granted the motion of defendant Montefiore Medical Center for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established its entitlement to judgment as a matter of law by demonstrating that plaintiffs private attending physician, codefendant Allen Chefitz, M.D., was responsible for the supervision and management of plaintiffs care (see generally Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]).

In opposition, plaintiff failed to raise a triable issue of fact on the theory that Montefiore’s staff failed to contact her private attending physician, or other surgeons, in light of her purported symptoms of ischemic bowel disease (cf. Agustin v Beth Israel Hosp., 185 AD2d 203, 205 [1st Dept 1992] [hospital liable, inter alia, for failure of recovery room staff to contact plaintiffs surgeon promptly when plaintiff went into shock]). The record evidence shows that Dr. Chefitz, plaintiffs attending physician, followed her care throughout her stay, including the period that allegedly encompassed the onset of her purported symptoms. Dr. Chefitz’s affirmation “directly contradicts [his prior sworn] deposition testimony . . . without any explanation accounting for the disparity” (Telfeyan v City of New York, 40 AD3d 372, 373 [1st Dept 2007]). Moreover, such affirmation, which supported plaintiffs discrete theory of her case, was “obviously prepared in support of ongoing litigation,” (id.) and was submitted while Dr. Chefitz’s own motion for summary judgment against plaintiff was pending, and when plaintiff elected not to oppose his motion. Accordingly, the affirmation is insufficient to defeat Montefiore’s properly supported motion for summary judgment (Harty v Lenci, 294 AD2d 296, 298 [1st Dept 2002]).

Concur — Sweeny, J.P., Renwick, Saxe, Manzanet-Daniels and Gische, JJ.