This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 151
David Pullman,
            Appellant,
        v.
David A. Silverman, M.D., et al.,
            Respondents.




          Brian J. Isaac, for appellant.
          Elliott J. Zucker, for respondents.




MEMORANDUM:
          The order of the Appellate Division should be reversed,
with costs, defendant David A. Silverman, M.D.'s motion for
summary judgment denied, and the certified question answered in
the negative.
          In this medical malpractice action, plaintiff alleged

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that defendant's negligent administration of Lipitor and his
negligent administration of the combination of Lipitor and
azithromycin caused him to have a cardiac arrhythmia, which
progressed to third degree atrioventricular (AV) heart block
necessitating the placement of a permanent pacemaker.
Specifically, in his bill of particulars, plaintiff alleged in
part that Dr. Silverman committed medical malpractice: "in
negligently prescribing Lipitor;" "in negligently prescribing
Azithromycin;" and "in negligently failing to consider the
possible adverse drug interactions in a patient on both Lipitor
and Azithromycin[.]"   Accordingly, as set forth in that bill of
particulars, plaintiff alleged his AV heart block resulted from
the negligent administration of the combination of Lipitor and
azithromycin, and that taking both drugs concurrently proximately
caused plaintiff's injuries.   Plaintiff did not, as suggested by
the dissent, exclusively "claim[] in his bill of particulars that
defendant 'exacerbated [p]laintiff's adverse reaction to Lipitor
by prescribing . . . Azithromycin.'"
          Defendant moved for summary judgement solely on the
issue of proximate cause and submitted a medical expert affidavit
in support of his motion.1   While defendant's expert
characterized plaintiff's allegations of malpractice as


     1
       The issue of the proper medical malpractice summary
judgement standard discussed in the concurrence is not before
this Court, it was not briefed by the parties, and we do not
address it.

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"center[ed] around an alleged contraindicated prescription by Dr.
Silverman to plaintiff of Lipitor separately and/or in
conjunction with Azithromycin," it was clear from plaintiff's
bill of particulars -- despite defendant's somewhat confusing use
of "and/or" -- that the combination of both drugs established one
basis for the claimed negligence.   However, defendant's expert
failed to address the effect of azithromycin administration alone
or in conjunction with Lipitor.   To the contrary, defendant's
expert affidavit addressed azithromycin only in conclusory
statements unsupported by any reference to medical research.
          In opposition, plaintiff and his experts asserted,
inter alia, that defendant's expert's affidavit did not
adequately address the concurrent azithromycin prescription and
did not cite to any medical research in support of his
conclusions about the combined effect.   Accordingly, plaintiff
argued, defendant failed as a matter of law to eliminate all
triable issues of fact regarding whether the combined effect of
the drugs could have proximately caused plaintiff's eventual
heart block.
          It is well settled that "the proponent of a summary
judgment motion must make a prima facie showing of entitlement to
summary judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of
fact"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
Failure to make such prima facie "showing requires denial of the


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                                - 4 -                        No. 151

motion, regardless of the sufficiency of the opposing papers"
(Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Establishing entitlement to summary judgement as a matter of law
requires the defendant to "rebut[] with factual proof plaintiff's
claim of malpractice" (Alvarez, 68 NY2d at 325).    "Bare
conclusory assertions . . . with no factual relationship to the
alleged injury" are insufficient to "establish that the cause of
action has no merit so as to entitle defendant[] to summary
judgment" (Winegrad, 64 NY2d at 853).
            Here, defendant's expert proffered only conclusory
assertions unsupported by any medical research that defendant's
actions in prescribing both drugs concurrently did not
proximately cause plaintiff's AV heart block.    These conclusory
statements did not adequately address plaintiff's allegations
that the concurrent Lipitor and azithromycin prescriptions caused
plaintiff's injuries.    By ignoring the possible effect of the
azithromycin prescription, defendant's expert failed to "tender[]
sufficient evidence to demonstrate the absence of any material
issues of fact" (Alvarez, 68 NY2d at 324) as to proximate
causation and, as a result, defendant was not entitled to summary
judgment.    Because defendant failed to meet his prima facie
burden, it is unnecessary to review the sufficiency of the
plaintiff's opposition papers (Winegrad, 64 NY2d at 853).




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Pullman v Silverman et al.
No. 151




FAHEY, J. (concurring):
          Although I join the majority's memorandum decision, I
write separately to note that the Court takes no position on
whether the Appellate Division correctly stated the standard
governing the shifting of burden in a medical malpractice summary
judgment motion.   This issue was raised by the parties in their
briefs, but not thoroughly discussed.
          According to the decision below, if a defendant in a
medical malpractice action establishes prima facie entitlement to
summary judgment, by a showing either that he or she did not
depart from good and accepted medical practice or that any
departure did not proximately cause the plaintiff's injuries,
plaintiff is required to rebut defendant's prima facie showing
"with medical evidence that defendant departed from accepted
medical practice and that such departure was a proximate cause of
the injuries alleged" (Pullman v Silverman, 125 AD3d 562, 562
[1st Dept 2015] [emphasis added]).     While this statement reflects
First Department jurisprudence (see e.g. Kristal R. v Nichter,
115 AD3d 409, 411-412 [1st Dept 2014]; Bacani v Rosenberg, 74
AD3d 500, 501-502 [1st Dept 2010], lv denied 15 NY3d 708 [2010]),
the Second Department has held since 2011 that if "a defendant


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physician, in support of a motion for summary judgment,
demonstrates only that he or she did not depart from the relevant
standard of care, there is no requirement that the plaintiff
address the element of proximate cause in addition to the element
of departure" (Stukas v Streiter, 83 AD3d 18, 24-25 [2d Dept
2011], disavowing Amsler v Verrilli, 119 AD2d 786 [2d Dept 1986];
see also e.g. Ahmed v Pannone, 116 AD3d 802, 805-806 [2d Dept
2014], lv dismissed 25 NY3d 964 [2015]; Makinen v Torelli, 106
AD3d 782, 783-784 [2d Dept 2013]).    Rather, plaintiff "need only
raise a triable issue of fact with respect to the element of the
cause of action or theory of nonliability that is the subject of
the moving party's prima facie showing" (Stukas, 83 AD3d at 24).
In short, there is an Appellate Division split.   The other
Departments of the Appellate Division side with the First (see
e.g. Bagley v Rochester Gen. Hosp., 124 AD3d 1272, 1273-1274 [4th
Dept 2015]; Longtemps v Oliva, 110 AD3d 1316, 1317-1318 [3d Dept
2013]).
          The Stukas Court explained the Second Department's
rationale as follows:
          "In the context of any motion for summary
          judgment, a party's prima facie showing of
          entitlement to judgment as a matter of law
          shifts the burden to the nonmoving party, not
          to prove his or her entire case, as he or she
          will have the burden of doing at trial, but
          merely to raise a triable issue of fact with
          respect to the elements or theories
          established by the moving party. There is no
          valid reason for adopting a different rule in
          medical malpractice cases." (Stukas, 83 AD3d
          at 25.)

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          The Second Department reasoned that the contrary rule,
requiring the nonmoving party to raise a triable issue of fact
with respect to an element upon which the moving party has not
made a prima facie showing, is
          "incompatible with the maxim that the moving
          party's evidence must be viewed in the light
          most favorable to the nonmoving party, as
          well as the general principle that summary
          judgment is considered a drastic remedy which
          should only be employed when there is no
          doubt as to the absence of triable issues of
          fact. It is neither logical nor fair to
          require the nonmoving plaintiff, who has
          previously alleged in the pleadings that the
          defendant's departure was a proximate cause
          of the claimed injuries, to come forward with
          evidence addressing an element that was never
          raised by the moving defendant. To require a
          plaintiff to address both departure and
          causation in opposing a defendant physician's
          prima facie showing as to departure only,
          conflates these two distinct elements, which
          have always been treated separately in our
          jurisprudence involving medical malpractice
          and negligence in general" (id. at 30).
          As the Stukas Court noted (see id. at 23-24), the focus
on specific rebuttal of a claim in the Second Department's
analysis is supported by our language in Alvarez v Prospect Hosp.
(68 NY2d 320 [1986]).   There we wrote that "[i]n a medical
malpractice action, a plaintiff, in opposition to a defendant
physician's summary judgment motion, must submit evidentiary
facts or materials to rebut the prima facie showing by the
defendant physician that he [or she] was not negligent in
treating plaintiff so as to demonstrate the existence of a
triable issue of fact" (id. at 324 [emphasis added]).   By


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contrast, opinions repeating the First Department's standard
largely do so without citation to Court of Appeals precedent.
Amsler v Verrilli (119 AD2d 786 [2d Dept 1986]), which was
expressly disavowed in Stukas, cited Zuckerman v City of New York
(49 NY2d 557 [1980]), but that decision held that "where the
moving party has demonstrated its entitlement to summary
judgment, the party opposing the motion must demonstrate by
admissible evidence the existence of a factual issue requiring a
trial of the action or tender an acceptable excuse for his
failure so to do, and the submission of a hearsay affirmation by
counsel alone does not satisfy this requirement" (Zuckerman, 49
NY2d at 560 [emphasis added]).    Zuckerman did not speak to the
burden-shifting issue that divides the Appellate Division.1
          The present appeal does not give the Court an
opportunity to decide whether Stukas properly describes the law
of medical malpractice summary judgment in New York.    First,
Pullman is not a case in which the Appellate Division required
plaintiff to show a triable issue of fact with respect to an



     1
          This Court appears to have applied the Stukas standard
in our memorandum decision Orsi v Haralabatos (20 NY3d 1079
[2013]), in which defendants, through expert affidavits, met
their burden on good and accepted medical practice, but failed to
address proximate causation. Holding that plaintiff raised a
triable issue of fact as to departure from good and accepted
medical practice, we denied so much of defendants' motion as
sought summary judgment dismissing the medical malpractice cause
of action against them. We did not require plaintiff to raise a
triable issue of fact as to proximate causation as well, in order
to withstand summary judgment.

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element on which it found defendant made no prima facie showing.
Second, this Court holds that defendant failed to meet his
burden, so that no burden-shifting is needed.   The fact that I am
joining the majority does not indicate my opinion on the
resolution of the split among the Appellate Division Departments
on this issue.




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Pullman v Silverman
No. 151




STEIN, J.(dissenting):
          I would affirm the order of the Appellate Division.
Plaintiff's allegations of malpractice "center[ed] around an
alleged contraindicated prescription by Dr. Silverman to
plaintiff of Lipitor separately and/or in conjunction with
Azithromycin."   As the majority recognizes, plaintiff claims that
"defendant's negligent administration of Lipitor and his
negligent administration of the combination of Lipitor and
[A]zithromycin" caused his injuries (maj at 2).   The nature of
this claim can be more fully understood when read in light of
plaintiff's more specific explanation in his bill of particulars
that defendant "exacerbated [p]laintiff's adverse reaction to
Lipitor by prescribing the concurrent administration of
Azithromycin."
          In my view, defendant met his burden of establishing
prima facie entitlement to summary judgment.   That is, "[a] fair
reading of the [expert affidavit], [and] hospital records . . .
compel the conclusion that no material triable issues of fact
exist as to the claims of malpractice asserted against the
defendant in the amended complaint as amplified by the bill of
particulars" (Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]


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[emphasis added]).   The affidavit of defendant's expert explains
that no epidemiological studies even link Lipitor or other
statins to plaintiff's injury and that an isolated case report --
which, as the expert noted, cannot demonstrate causation (see
Cornell v 360 W. 51st St. Realty, LLC, 22 NY3d 762, 783 [2014]) -
- showing that Lipitor, in combination with drugs other than
Azithromycin, caused a type of myopathy was not relevant because
plaintiff's medical records revealed that he did not have
myopathy.   The expert affidavit sufficiently demonstrated, for
purposes of making a prima facie case, that plaintiff had no
pertinent adverse reaction to Lipitor that could have been
exacerbated by the prescription of Azithromycin, which was the
basis of plaintiff's claim that the combination of drugs injured
him.   Contrary to the majority's conclusion, the expert was not
required to further "address the effect of [A]zithromycin
administration alone or in conjunction with Lipitor" (maj at 3),
which is the converse of plaintiff's claim, as opposed to his
actual claim.
            With defendant having made a prima facie showing, the
burden shifted to plaintiff to raise a triable issue of fact.
Inasmuch as there is simply too great of an analytical gap
between the data relied upon by plaintiff's experts and their
conclusion that Lipitor, alone or in conjunction with
Azithromycin, caused plaintiff's injuries, defendant's motion for
summary judgment was properly granted (see Cornell, 22 NY3d at


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781).
*   *   *   *   *   *   *   *    *      *   *   *   *   *   *     *   *
Order reversed, with costs, defendant David A. Silverman, M.D.'s
motion for summary judgment denied, and certified question
answered in the negative, in a memorandum. Chief Judge DiFiore
and Judges Pigott, Fahey and Garcia concur, Judge Fahey in a
separate concurring opinion. Judge Stein dissents and votes to
affirm in an opinion in which Judges Rivera and Abdus-Salaam
concur.

Decided November 1, 2016




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