CPLR 2214 Med Mal

CPLR 2214(c)

Garrison v Quirk, 2014 NY Slip Op 05947 [2nd Dept. 2014]

"A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any alleged departure was not a proximate cause of the plaintiff's injuries" (Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825). "The burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact only upon the defendant physician's meeting the initial burden, and only as to the elements on which the defendant met the prima facie burden" (id. at 825 [citation omitted]). Here, as the Supreme Court correctly determined, the moving defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law. In forming their opinions, the moving defendants' medical experts did not examine the plaintiff's decedent but relied upon, inter alia, medical reports and medical records that were not annexed to the motion (see LaVecchia v Bilello, 76 AD3d 548; Farmer v City of New York, 25 AD3d 649, 650; see also Jian-Yu Zhang v Qiang Wang, 24 AD3d 611, 612). Although the moving defendants contend that they provided the Supreme Court with a CD-R containing the medical records relied upon by their experts, there is no evidence that the CD-R provided to the court properly contained the certified medical records, or was even readable by the court (see CPLR 2214[c]; Loeb v Tanenbaum, 124 AD2d 941, 942; see generally 22 NYCRR 202.5[b]). Moreover, even if a readable CD-R was previously submitted to the court in connection with an earlier motion in this case, the Supreme Court should "not be compelled, absent a rule providing otherwise, to locate previously submitted documents in the electronic record in considering subsequent motions" (Biscone v JetBlue Airways Corp., 103 AD3d 158, 179). The moving defendants' remaining contentions are without merit. Therefore, the Supreme Court correctly denied the motion.

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