Prizzi v. Lee

2023 NY Slip Op 34573

• Court: New York Supreme Court, Kings County
• Decided: December 18, 2023
• Status: Unpublished

Opinion

Prizzi v Lee 2023 NY Slip Op 34573(U) December 18, 2023 Supreme Court, Kings County Docket Number: Index No. 510688/2017 Judge: Ellen M. Spodek Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 12/22/2023 INDEX NO. 510688/2017 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 01/02/2024

At an IAS Term, Part 63 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the jgfa'ay of December 2023

PRESENT:

HON. ELLEN M. SPODEK, Justice - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

ROBERT PRIZZI I AMENDED Plaintiff, DECISION AND ORDER

-against- Index No.: 510688/2017

ALLEN L. LEE, ALLEN L.LEE, MD, P.C., BIM ,IM

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Papers Numbered

Notice of Motion ................................................................ . 1 Affirmation in Opposition ...................................................... . 2 Affirmation in Reply ........................................................................ . 3

Defendant, SHIEL HOLDINGS, LLC i/s/h/a BIM MEDICAL, INC. d/b/a SHIEL

MEDICAL LABORATORY, INC. and BIM MEDICAL, INC. d/b/a SHIEL LABORATORY,

INC. ("Shiel"), move pursuant to CPLR 3212 for Summary Judgment. Plaintiff ROBERT PRIZZI

did not oppose this motion. Co-Defendants ALLEN L LEE and ALLEN L. LEE, MD, P.C. ("Dr.

Lee"), opposed the motion.

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On or around December 5th , 2014, Plaintiff discovered a lump on his scrotum while in the

shower which eventually burst, causing a painful and inflamed rash. In response, on December 8th ,

Plaintiff made an appointment with Dr. Lee, his primary care physician. Plaintiff saw Dr. Lee on

December 9th , with the rash and his flu-like symptoms. Dr. Lee advised Plaintiff that it could be

the beginning of cellulitis. Dr. Lee took Plaintiff's blood and sent it for testing to Shiel on a regular,

non-rushed basis.

Shiel documented receiving the specimen at 11 :05 PM on December 9. In their system, it

documents that at 3: 16 AM on December 101h, the white blood cell test was approved and released

and the results were available by 4:55 AM to Dr. Lee on their portal titled LabCare. Shiel alleges

that Dr. Lee was registered for LabCare and would have received a pop-up notification on their

computer stating that critical results had come in. Dr. Lee claims to not know what LabCare is. At

1:24 PM on December 10th, Shiel alleges that they called Dr. Lee and advised Paul Lee, Dr. Lee's

office manager, that Plaintiff's white blood cell count was at a critical count of 22.8. Shiel then

sent their test results to a printer via facsimile in Dr. Lee's office with a cover page stating that the

report contained critical results at both 1:24 PM and 7:48 PM, according to their records. These

were both a common practice of delivering results from Shiel which Dr. Lee testified to.

Dr. Lee stated in his testimony that traditionally in his practice when lab results were

received, Paul Lee would receive them and place them on his desk where Dr. Lee would look over

them at the end of the workday. Dr. Lee stated that during the workday he does not like to be

interrupted with test results, however, if they were critical such as these results they would require

immediate attention. Paul Lee stated in his testimony that if critical results came in from Shiel, he

would interrupt Dr. Lee during the workday. Paul Lee testified that he could not remember the

events of December 11 1h, stating that he did not recall a phone call from the lab regarding the

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Plaintiff or a report that said critical test results. Dr. Lee testified that he did not become aware of

. · Plaintiffs test results until he saw them on his desk around 7:00 PM. Dr. Lee then called Plaintiff

and told him to go to an emergency room.

. When Plaintiff went to the emergency room, he was diagnosed with Fournier's Gangrene,

a serious, painful, and fast spreading infection on the scrotum. Plaintiff needed to have upwards

of five surgical interventions and multiple skin grafts, among other treatment.

DISCUSSION

On a motion for summary judgment to dismiss a medical malpractice cause of action, a

defendant has the prima facie burden of establishing that there was no departure from good and

accepted medical practice, or, if there was a departure, the departure was not the proximate cause

of the alleged injuries. Brinkley v. Nassau Health Care Corp., 120 A.D.3d 1287 (2d Dept. 2014);

Stukas v Streiter, 83 AD3d 18, 24-26 (2d Dept. 2011). Once the defendant has made such a ·

showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the prima

facie showing made by the defendant, so as to demonstrate the existence of a triable issue of fact.

AlvarezvProspect Hosp., 68NY2d 320,324 (1986);Brinkleyv. Nassau Health Care Corp.,supra;

Fritz v. Burman, 107 A.D.3d 936, 940 (2d Dept. 2013); Lingfei Sun v. City ofNew York, 99 AD3d

673, 675 (2d Dept. 2012); Bezerman v. Bailine, 95 AD3d 1153, 1154 (2d Dept. 2012); Stukas v.

Streiter, at 24. A plaintiff succeeds in a medical malpractice action by showing that a defendant

deviated from accepted standards of medical practice and that this deviation proximately caused

plaintiff injury. Contreras v Adeyemi., 102 AD3d 720, 721 (2d Dept. 2013); Gillespie v New York

Hosp. Queens, 96 A.D.3d 901, 902 (2d Dept. 2012); Semel v Guzman, 84 AD3d 1054, 1055-56

(2d Dept. 2011). The plaintiff opposing a defendant physician's motion for summary judgment

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must only submit evidentiary facts or materials to rebut the defendant's prima facie showing.

Stukas, at 24.

SHIEL LABORATORY'S MOTION FOR SUMMARY JUDJMENT

Defendants SHIEL HOLDINGS, LLC i/s/h/a BIM MEDICAL, INC. d/b/a SHIEL

MEDICAL LABORATORY, INC. and BIM MEDICAL, INC. d/b/a SHIEL LABORATORY,

INC.'s motion was unopposed by the plaintiff. Defendants, ALLEN L. LEE and ALLEN L. LEE,

MD, P.C., opposed the motion, however there were no cross claims filed by Dr. Lee against Shiel.

Dr. Lee did not move for leave to amend to add any cross claims. The Court finds that Dr. Lee

lacks standing to oppose the summary judgment motion by Shiel. While there is a lack of authority

in New York State regarding standing of a co-defendant to oppose another defendant's summary

judgment motion when the plaintiff does not oppose the motion, and there are no cross claims,

there are federal cases which discuss the issue. In Blonder v. Casco Inn Residential Care, Inc.

2000 WL 761895 (D. Me. May 4, 2000), the court discusses Federal Rule of Civil Procedure 56,

which governs summary judgment motions, and finds that the rule "is intended to avoid trial when

appropriate and to bring about summary justice whenever legally proper. Requiring Plaintiff to

prosecute her claims against Defendants .... when she no longer believes such claims to be viable

would be contrary to the principle of Rule 56 that trials (or portions thereof) should be avoided

when appropriate. Requiring Defendants .... to endure such a trial would be contrary to the

principle of Rule 56 that the Court should bring about summary justice whenever legally proper."

Id. at *l. See also Thurman v. Wood Group Production Services, Inc., 2010 WL 5207587, at*]

(E.D.La. Dec.14, 2010); Eckertv. CityofSacramento, 2009 WL3211278, at *3 (E.D.Cal. Sept.JO,

2009). While New York State courts are not governed by the Federal Rules of Civil Procedure, the

rationale behind the rules for summary judgment in New York State are similar. To force a ! j

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plaintiff to continue a trial against a defendant that they no longer believe they have a case against

is wasteful of court resources and money. Co-defendant Dr. Lee has cited no authority to support

their standing to oppose the motion for summary judgment by Shiel. Without standing to oppose

the motion, the Court will not consider the opposition filed by Dr. Lee. Therefore, the motion for

summary judgment by Shiel is granted.

CONCLUSION

The motion for ~ummary judgment by SHIEL HPLDINGS; LLC i/s/h/a BIM MEDICAL, ·:·--. '

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... • • •

' • • ,, I

•'•

INC. d/b/q •r-SHIEL MEPICAL LABORATORY, INC. and BIM MEDICAL, INC, d/bhl SHIEL . ,. . , - . • •..._

LABORATORY, INC. is granted as unoppoe;ed, The Clerk of the Coµn ls directe!i to enter t 'i • • • . : • ·., ••,. ·_ - . -··' • '

Judgmept acc?r~ingly. '.fhe caption shall be amended ~s follows:. ,• ' - . . . -· . . .· ' ' .-'•

- - - - ••• ~. ' ~~ ~ - R - R - •• - - - • . - - • - ~. - - - - - - • . .~- - • -X .

ROBERT PRIZZI, • J ~ t, .. :;::t: ::;: i5 (/)

-agajnst- ..,,g rS fTl:!:i ALLEN L. L~E. ALLEN L.LEE, MO, P.c.: and CJ-< MAIMONIDES. MEDICAL CENTER, . C') r- r•·--.· · . -- · · Defendant~. ('TI ::0 N :,:;:

ENTER, ,·•.,,.•~-- . . -.,-_.... -... -{M-~;: .. ,_ . . , ;..<..~;~;~:~ ~~~ •;~•-· :-:~.. -~~. J .C. HON. ELLEN M: SPODEK

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