

Gorham v Markenson (2014 NY Slip Op 07099)





Gorham v Markenson


2014 NY Slip Op 07099


Decided on October 21, 2014


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on October 21, 2014

Tom, J.P., Renwick, Moskowitz, Richter, Kapnick, JJ.


13259 800064/10

[*1] Flora Gorham, as Administratrix of the Estate of Carissa St. Victor, Plaintiff-Respondent,
vDavid Markenson, et al., Defendants, Matthew Weissman, Defendant-Appellant.


Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for appellant.
Cascione, Purcigliotti & Galluzzi, P.C., New York (Thomas G. Cascione of counsel), for respondent.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered December 19, 2013, which denied defendant Matthew Weissman's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.
Defendant failed to establish prima facie that he did not depart from good and accepted medical practice in his treatment of plaintiff's decedent, a child who suffered physical abuse that resulted in her death at one year of age. Plaintiff contends that defendant failed to diagnose, treat and report the physical abuse; defendant argues that he had no reasonable cause to suspect physical abuse. Defendant's expert opinion that there was no departure from good and accepted medical practice is insufficient to establish defendant's defense, because, although the record contains sharply conflicting accounts of the child's mother's reports to defendant and of the conditions that the child presented with when defendant saw her, the expert based her opinion on only one version of facts reflecting what defendant knew about the abuse (see generally Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]).
For the foregoing reason, defendant also failed to establish prima facie that he did not [*2]breach his duty to report his suspicion that the child was abused (see Social Services Law § 413[1][a]).
We have considered defendant's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: OCTOBER 21, 2014
CLERK


