On or about October 30, 2007, the plaintiff commenced this action for medical malpractice against defendant Dry Harbor Nursing Home & Rehabilitation Center, Inc. [hereinafter "Dry Harbor"] and Dr. Vincent Rappa. Plaintiff thereafter amended his complaint, on or about August 7, 2008, to add defendants Dr. Donna Seminara and Staten Island University Hospital [hereinafter "SIUH"]. Specifically, the plaintiff contends that the defendants failed to timely diagnose and treat, inter alia, plaintiff decedent George Kytka's decubitus ulcers and subsequent infections which resulted in surgery. Issue was joined and discovery was complete in June 2009. At present, defendants Dr. Seminara and Dry Harbor are separately moving for similar relief in their first two motions whereby they request plaintiff produce all wills/codicils and powers of attorney that the decedent George Kytka has or had previously executed. In addition, Dr. Seminara, SIUH, Dr. Rappa and Dry Harbor, are all separately moving for summary judgment seeking to dismiss the complaint as against each of them individually contending, inter alia, that they each did not deviate from accepted medical practice in the treatment they rendered to the plaintiff decedent, George Kytka.

It is undisputed that on April 8, 2007, the plaintiff decedent George Kytka was discovered on the floor of his residence after he had fallen the previous day. He was thereafter transported and admitted to SIUH. George Kytka was treated at the hospital by his primary care physician defendant Dr. Seminara, whom he had been treating with since 1998. Upon admission it was noted that the plaintiff decedent suffered from, inter alia, obesity, cellulitis, and diabetes. On April 15, 2007, the chart notes that the decedent had a Stage I sacral ulcer. Plaintiff George Kytka received treatment for the ulcer including a consultation by Karin Farid, C.N.S., a nurse specialist in enterostomal therapy at defendant SIUH, who noted on April 19, 2007, that the decubitus ulcer was now Stage IV.

On April 23, 2007, the decedent was discharged to defendant Dry Harbor Nursing Home [*2]where he received treatment by defendant Dr. Vincent Rappa. Dr. Rappa was the Medical Director at Dry Harbor at the time of the plaintiff decedent's admission. Dr. Rappa first examined George Kytka on April 24, 2007, where he completed a Medical History and Physical form. The form indicates the presence of two decubitus ulcers. Dr. Rappa treated the plaintiff, George Kytka, with, inter alia, nutritional supplements, pain medication, and instructions for rotation/dressing changes. During his stay at Dry Harbor, the decedent received several surgeries in an attempt to debride the ulcers.

On July 18, 2007, George Kytka was transferred to Columbia Presbyterian Hospital, in Manhattan, where he remained until July 27, 2007. Thereafter, he was transferred to Riverdale Nursing Home where he remained until August 1, 2007. The decedent, George Kytka, was then transferred to Manhattanville Health Center where he remained, minus a brief re-admission to Columbia Presbyterian from November 4 through November 15, until December 21, 2007. The decedent expired on January 8, 2008, at Forest Hills Hospital.

With respect to Dr. Seminara and Dry Harbor's motions [Motions 004 and 005] requesting the production of all current and previous will/codicils and/or powers of attorney that plaintiff decedent George Kytka executed, this Court directs the plaintiff to supply the requested information to all defendants within 20 days. This Court does not find the request vague, broad or harassing and directs the plaintiff to comply, forthwith.

I.Dr. Seminara's Motion for Summary Judgment [Motion 006]

It is well settled that a "proponent of a summary judgment motion must make a prima facie showing of entitlement to 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]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).

In opposition, however, the affidavit of plaintiff's medical expert successfully raised triable issues of fact (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Plaintiff's expert, Dr. Robert B. Alperin, opined that the defendant Dr. Seminara deviated from good and accepted medical practice in the treatment she rendered to the plaintiff decedent George Kytka. Specifically, Dr. Alperin contends that Dr. Seminara failed to examine the plaintiff's decubitis ulcer on her second visit and failed to properly assess and direct appropriate treatment for the plaintiff's ulcers. Moreover, plaintiff's expert contends that had Dr. Seminara properly performed a full examination of the plaintiffs decubitis ulcers, a proper diagnosis/course of treatment could have been effectuated. Thus, the medical expert affirmations of the parties clearly differ on the alleged deviations by defendant Dr. Seminara and, it is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of Dr. Seminara is inappropriate.

II.SIUH's Motion for Summary Judgment [Motion 005]

"Generally, a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee" (Quezada v. O'Reilly-Green, 24 AD3d 744, 746 [2d Dept. 2005]). Nor, can it be held liable "where its employees follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" (Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]; Cerny v. Williams, 32 AD3d 881, 883 [2d Dept. 2006]; Welch v. Scheinfeld, 21 AD3d 802, 807 [1st Dept. 2005]).

Here, the defendant SIUH has established its entitlement to summary judgment by demonstrating that the doctors who treated the plaintiff, George Kytka, were private independent contractors and that the treatment which was rendered by SIUH's employees, namely nurse Karen Farid, was well within the accepted medical standards (Quezada v. O'Reilly-Green, 24 AD3d [*4]744, 746 [2d Dept. 2005]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Defendant SIUH has established that the plaintiff George Kytka was treated primarily by co-defendant Dr. Seminara and non-party Dr. Jean-Baptiste who are not employees of the hospital and thus, SIUH cannot be held liable for any alleged deviations on their behalf. Further, SIUH established that its employees neither committed independent acts of negligence, nor did they follow orders from Drs. Seminara or Jean-Baptiste which were "so clearly contraindicated by normal practice" that they should have inquired into the accuracy of such orders (Garson v. Beth Israel Medical Ctr., 41 AD3d at 159; Cerny v. Williams, 32 AD3d at 883).

In addition, SIUH's expert, Dr. Poonam Alaigh, opined that the hospital staff did not deviate from accepted medical standards in the medical care rendered to plaintiff George Kytka, which included appropriately timed turning, placing plaintiff on a zone air bed and applying medication to the ulcers. Dr. Alaigh also opined that the nurses took all preventative measures to ensure the ulcers did not worsen and that plaintiff's fall in his home actually created a deep tissue injury which initiated the decubitis ulcers.

In opposition, however, the affidavit of plaintiff's medical expert successfully raised triable issues of fact (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Plaintiff's expert, Dr. Robert B. Alperin, opined that SIUH deviated from accepted medical standards by failing to keep George Kytka's decubitis ulcers clean and dry and to turn Mr. Kytka regularly, which caused the subsequent infection. In addition, Dr. Alperin opined that the ulcers were in no way caused by the fall at plaintiff's home but rather from defendants' collective negligence in failing to timely turn, clean, and overall render effective treatment to the plaintiff, George Kytka. As a result, the differing medical opinions of experts requires denial of defendant SIUH's motion for summary judgment motion and resolution by a jury (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]).

III.Dr. Rappa's Summary Judgment Motion [Motion 008]

With regard to defendant Dr. Rappa's motion, he has successfully established prima facie entitlement to summary judgment as a matter of law through submission of the affidavit of Dr. Howard Kolodny (Alvarez v. Prospect Hosp. 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]). Defendant's expert, Dr. Kolodny, opined that the defendant Dr. Rappa did not deviate from the standard of care applicable in his treatment of the plaintiff George Kytka, because under the circumstances presented Dr. Rappa performed the appropriate tests/evaluations to treat plaintiff's decubitis ulcers. Dr. Kolodny further opined that Dr. Rappa treated plaintiff George Kytka in a manner consistent with accepted medical standards in healing decubitis ulcers, including debridement.

In opposition, the plaintiff's expert creates a triable issue of fact, including whether Dr. Rappa contributed to the subsequent infection of plaintiff George Kytka's decubitis ulcers which led to complications and allegedly, in part, to his eventual death (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Specifically, plaintiff's expert opines that had Dr. Rappa's treatment, including supervised debridement, of plaintiff George Kytka's decubitis ulcers caused [*5]plaintiff to, inter alia, develop gangrene. Clearly, triable issues of fact exist regarding whether Dr. Rappa acted appropriately under the circumstances and summary judgment must be denied in medical malpractice actions where the parties offer conflicting expert opinions creating a credibility issue requiring a jury's resolution (Dandrea v. Hertz, 23 AD3d 332 [2d Dept., 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept., 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept., 2003]).

IV.Dry Harbor's Summary Judgment Motion [Motion 009]

Defendant Dry Harbor has established that it rendered appropriate treatment to plaintiff decedent during his admission to the nursing home (Alvarez v. Prospect Hosp. 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]). Dry Harbor has established that its staff properly administered medication, wound care and evaluations based upon Mr. Kytka's condition. Defendant Dry Harbor submitted the expert affirmation of Dr. Louis Mudannayake who opined that Dry Harbor appropriately treated decedent's decubitius ulcers, including rendering appropriate cleaning/turning of decedent, nutritional interventions and debridment.

In opposition, the plaintiff has successfully raised triable issues of fact ( Zuckerman v. City of New York, 49 NY2d 557 [1980]). The plaintiff's expert, Dr. Robert B. Alperin, opined that Dry Harbor deviated from accepted medical standards in its care rendered to the plaintiff, George Kytka. Dr. Alperin opined that defendant Dry Harbor deviated from accepted medical practice by failing to provide special bedding used to treat decubitis ulcers, to follow a strict turning protocol and to appropriately maintain Mr. Kytka's ulcers. Further, additional questions of fact exist as to whether Dry Harbor caused the infection of plaintiff's ulcer with gangrene and as such summary judgment is inappropriate where, as here, multiple questions of fact exist (Dandrea v. Hertz, 23 AD3d 332 [2d Dept., 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept., 2004]).

Accordingly, it is

ORDERED that defendant Dr. Seminara's motion to compel production of documents is granted to the extent that plaintiff is hereby directed to produce the requested documents within 20 days, and it is further

ORDERED that defendant Dry Harbor Nursing Home's motion to compel production of documents is hereby granted to the extent that the plaintiff is hereby directed to produce the requested documents within 20 days, and it is further

ORDERED that the defendant Dr. Seminara's motion for summary judgment is hereby denied, and it is further

ORDERED that defendant Staten Island University Hospital's motion for summary judgment is hereby denied, and it is further

ORDERED that defendant Dr. Rappa's motion for summary judgment is hereby denied, and it is further

ORDERED that the defendants Dry Harbor Nursing Home's motion for summary judgment is hereby denied, and it is further, [*6]

ORDERED that any and all additional requests for relief are hereby denied, and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: January 7, 2010ENTER,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court