                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered:   November 20, 2014               518207
                                                       518208
________________________________

GAIL C. HOWARD, Individually
   and as Administrator of the
   Estate of SCOTT R. HOWARD,
   Deceased,
                    Appellant,
      v                                     MEMORANDUM AND ORDER

CRAIG STANGER et al.,
                    Respondents.
________________________________


Calendar Date:   October 14, 2014

Before:   Peters, P.J., Stein, Rose, Egan Jr. and Clark, JJ.

                             __________


      Freeman Howard, PC, Hudson (Paul M. Freeman of counsel),
for appellant.

      Feldman Kieffer, LLP, Buffalo (James E. Eagan of counsel),
for Craig Stanger and another, respondents.

      O'Connor, O'Connor, Bresee & First, PC, Albany (Justin O'C.
Corcoran of counsel), for Columbia Memorial Hospital, respondent.

                             __________


Egan Jr., J.

      Appeals (1) from an order of the Supreme Court (McGrath,
J.), entered March 27, 2013 in Columbia County, which granted
defendants' motions for summary judgment dismissing the
complaint, and (2) from an order of said court (Zwack, J.),
entered July 23, 2013 in Columbia County, which denied
plaintiff's motion for reconsideration.
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      On January 29, 2009, Scott R. Howard (hereinafter decedent)
became ill while testifying at the Columbia County Courthouse.
Decedent advised responding emergency services personnel that he
was suffering from, among other things, back pain and numbness in
his legs and thereafter was transported via ambulance to
defendant Columbia Memorial Hospital. Upon his arrival in the
hospital's emergency department, decedent relayed his symptoms to
the nursing staff, indicating, among other things, that he had
experienced dizziness and a "sudden onset of back discomfort" and
that he "felt tingling in his legs." While in the emergency
department, decedent displayed various gastrointestinal symptoms,
including nausea and vomiting, in response to which defendant
Craig Stanger, one of the attending physicians on duty that day,
ordered medication to treat decedent's nausea and blood tests to
evaluate his condition. After speaking with decedent and
reviewing his laboratory results, Stanger discharged decedent
with a diagnosis of gastroenteritis, acute stress reaction and
renal insufficiency and directed him to follow up with his
personal physician. The following day, decedent returned to the
hospital's emergency department in cardiac arrest and, shortly
thereafter, died – purportedly as the result of a cardiac
tamponade due to a ruptured dissecting thoracic aortic aneurysm.

      Plaintiff subsequently commenced this medical malpractice
and wrongful death action against the hospital, Stanger and
Stanger's employer, defendant Columbia Emergency Services, P.C.
Following joinder of issue and discovery, defendants separately
moved for summary judgment dismissing plaintiff's complaint.
Supreme Court (McGrath, J.) granted defendants' motions,
prompting plaintiff to move for reconsideration. Supreme Court
(Zwack, J.) denied plaintiff's motion for reconsideration, and
these appeals by plaintiff ensued.

      Beginning with plaintiff's motion for reconsideration, to
the extent that such motion sought reargument, no appeal lies
from the denial thereof (see Wells Fargo, N.A. v Levin, 101 AD3d
1519, 1520 [2012], lv dismissed 21 NY3d 887 [2013]). To the
extent that plaintiff sought leave to renew, it is well settled
that "a motion to renew must be based upon newly discovered
evidence which existed at the time the prior motion was made, but
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was unknown to the party seeking renewal, along with a
justifiable excuse as to why the new information was not
previously submitted" (Matter of Kelly v Director of TRC
Programs, 84 AD3d 1657, 1658 [2011] [internal quotation marks and
citation omitted]; see Premo v Rosa, 93 AD3d 919, 920 [2012]).
Notably, a motion to renew is "not a second chance to remedy
inadequacies that occurred in failing to exercise due diligence
in the first instance" (Onewest Bank, FSB v Slowek, 115 AD3d
1083, 1083 [2014] [internal quotation marks and citation
omitted]).

      Here, plaintiff's motion to renew was based upon her
discovery that Stanger's license to practice medicine was under a
one-year stayed suspension1 at the time that he tendered his
affidavit in support of defendants' respective motions.2 As
Stanger's license was under suspension, the argument continues,
his affidavit necessarily was insufficient to discharge
defendants' initial burden on the motions for summary judgment.
Setting aside, for the moment, the overall sufficiency of
Stanger's affidavit, the flaw in plaintiff's argument on this
point – viewed in the context of the motion to renew – is that
Stanger's license suspension was effective June 7, 2012, the
underlying consent order entered into between Stanger and the
Office of Professional Medical Conduct was a public document and
plaintiff has failed to offer any explanation as to why such
suspension could not have been discovered with due diligence
prior to the point in time that plaintiff opposed defendants'
motions in November 2012. Under these circumstances, plaintiff's


    1
        The suspension was the product of a consent agreement and
order, wherein Stanger agreed – in full satisfaction of the
charges against him – not to contest the allegations that he
committed professional misconduct by practicing medicine with
negligence on more than one occasion with respect to his care and
treatment of patients A and B in February 2008 and September
2008, respectively.
    2
        The hospital expressly incorporated by reference
Stanger's affidavit in support of its summary judgment motion.
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                                                 518208

motion to renew was properly denied (see Vieyra v Penn Toyota,
Ltd., 116 AD3d 840, 841-842 [2014]; Webber v Scarano-Osika, 94
AD3d 1304, 1305-1306 [2012]; Hoffman v Pelletier, 6 AD3d 889, 890
[2004]).

      Turning to the merits, "[t]he essential elements of medical
malpractice are (1) a deviation or departure from accepted
medical practice, and (2) evidence that such departure was a
proximate cause of injury" (Wexelbaum v Jean, 80 AD3d 756, 757
[2011] [internal quotation marks and citations omitted]). Here,
plaintiff alleged that defendants departed from accepted
standards of medical care by failing to, among other things,
appreciate the significance of decedent's symptoms (particularly
the sudden onset of back pain), properly interpret the results of
his blood tests, consider a differential diagnosis of aortic
dissection or aneurysm and order appropriate diagnostic testing –
specifically, a CAT scan or transesophageal echocardiogram.
Hence, in order to prevail upon their respective motions for
summary judgment dismissing the complaint, defendants bore the
initial burden of demonstrating that they did not deviate from
accepted standards of practice or, if they did so, that such
deviation did not cause any injury to decedent (see Cole v
Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d 1283, 1285
[2014]; Longtemps v Oliva, 110 AD3d 1316, 1317 [2013]; LaFountain
v Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d 1060, 1061
[2012]). To that end, defendants primarily relied upon Stanger's
affidavit, wherein he discussed the "typical presentation for an
aortic dissection and/or aortic aneurysm," delineated decedent's
chief complaints and presenting symptoms upon arrival in the
hospital's emergency department, recited the results of
decedent's blood work and explained why he did not believe that
further diagnostic testing was warranted.

      To be sure, "a defendant physician's affidavit or
affirmation describing the facts in specific detail and opining
that the care provided did not deviate from the applicable
standard of care" may be sufficient to discharge the moving
party's initial burden on a motion for summary judgment (Cole v
Champlain Val. Physicians' Hosp. Med. Ctr., 116 AD3d at 1285; see
Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]; see also
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Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]) and, contrary
to plaintiff's assertion, the fact that Stanger's license was
under a stayed suspension at the time he prepared the subject
affidavit does not render his affidavit inadmissible for purposes
of the underlying motions (cf. Williams v Halpern, 25 AD3d 467,
468 [2006]). Additionally, we find no merit to plaintiff's claim
that Stanger prepared his affidavit in violation of either the
underlying consent order or the terms of his probation. Although
the terms of probation permitted Stanger to "practice medicine
only when monitored by a licensed physician, board certified in
an appropriate specialty," the terms of probation did not require
the practice monitor to directly supervise Stanger's treatment of
patients or, insofar as is relevant here, to review or supervise
the preparation of Stanger's affidavit. Rather, the terms of
probation required the practice monitor to visit Stanger's
practice on at least a monthly basis and to review no fewer than
20 of Stanger's patient records in order to determine whether
Stanger's medical practice was being conducted in accordance with
generally accepted standards of care.

      That said, we nonetheless are troubled by the fact that
Stanger failed to disclose the status of his medical license when
he prepared his affidavit in support of defendants' motions for
summary judgment. The very first paragraph of Stanger's
affidavit recites, "I am a physician duly licensed to practice in
the State of New York." Noticeably absent from both that opening
paragraph and Stanger's affidavit as a whole is any mention of
the fact that, only two months earlier, a one-year stayed
suspension of his medical license had been imposed and that he
was practicing medicine subject to certain terms of probation.
This glaring omission is entirely inconsistent with Stanger's
ethical obligations as a practicing physician and, in our view,
seriously calls into question the medical opinion he has rendered
regarding his diagnosis, care and treatment of decedent.
Additionally, further review of Stanger's affidavit reveals that
the opinion set forth therein was "[b]ased on [Stanger's] review
of the [medical] records in this matter, as well as [his]
personal recollection of the care and treatment rendered to
[decedent]." In this regard, Stanger acknowledged that he did
not complete his charting of decedent's January 29, 2009 hospital
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visit until after he (1) learned that decedent had returned to
the emergency department the following day, (2) was advised that
decedent had died, and (3) had been questioned by another
physician regarding the care and treatment he had provided to
decedent the previous day. Under these circumstances, we do not
find Stanger's affidavit to be sufficient to satisfy defendants'
initial burden on the motions for summary judgment, thereby
warranting the denial thereof.

      Moreover, even if we were to conclude that Stanger's
affidavit was sufficient to discharge defendants' burden in this
regard, we would find that plaintiff's proof in opposition was
sufficient to raise questions of fact as to whether defendants'
diagnosis, care and treatment of decedent deviated from accepted
medical practices. Initially, we would agree that the brief and
conclusory affidavit tendered by plaintiff's expert offered no
insight into the manner in which Stanger's diagnosis, care and
treatment of decedent departed from accepted medical practices
and, hence, would be insufficient to raise a question of fact
(see Longtemps v Oliva, 110 AD3d at 1319; Martino v Miller, 97
AD3d at 1010-1011).3 That said, plaintiff also tendered
Stanger's examination before trial testimony, wherein he
acknowledged that the "sudden onset of back pain can be a
harbinger of bad stuff," including "aortic aneurysm, aortic
dissection, heart attack," and decedent's hospital records
reflect "a sudden onset of back discomfort" accompanied by
dizziness and a tingling in decedent's legs while he was
testifying. Similarly, although Stanger testified that decedent
did not display certain indicators of an aortic
dissection/aneurysm (hypertension) and that some of decedent's
noted symptoms (diarrhea) were "not part of [that] picture," he
also testified that nausea, vomiting and numbness or tingling in
the legs – all of which decedent did complain of or display –
either were or could be indicative of an aortic dissection or


     3
        Having previously concluded that plaintiff's motion for
reconsideration was properly denied, we would not consider the
supplementary affidavit tendered by plaintiff's expert or the
attached autopsy report.
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aneurysm. Stanger further testified that a CAT scan, which he
did not order (purportedly due to decedent's representation that
his back pain had resolved), was the "go-to test" for diagnosing
this condition. Finally, although Stanger's written discharge
summary indicated that decedent was "feeling better" after he
received fluids and anti-nausea medication and was "ok for
discharge," Stanger acknowledged, as noted previously, that he
did not complete his charting of decedent's January 29, 2009
hospital visit until after he learned that decedent had returned
to the emergency department the following day and died.
Accordingly, even assuming that Stanger's affidavit was
sufficient to discharge defendants' burden on the subject motions
in the first instance, we nonetheless would find that defendants
are not entitled to summary judgment dismissing the complaint.

     Peters, P.J., Stein, Rose and Clark, JJ., concur.



      ORDERED that the order entered March 27, 2013 is reversed,
on the law, with costs, and motions denied.

     ORDERED that the order entered July 23, 2013 is affirmed.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
