Upon the following papers numbered 1 to 47 read on these motions for summary judgment: Notice of Motion and supporting papers (007), 1 - 15; Notice of Cross Motion and supporting papers (008), 16 - 35; Answering Affidavits and supporting papers, 36 - 46; Other, 47.

In this action alleging medical malpractice, negligence, lack of informed consent, negligent hiring and the wrongful death of the plaintiff's decedent, Vincent Ciaccio, it is claimed that the defendants departed from good and accepted standards of medical care and treatment between January 17, 2005 and March 10, 2005, resulting in the pain and suffering and wrongful death of the decedent on March 10, 2005 at age 61. It is additionally claimed that the defendants negligently failed to diagnose and treat the plaintiff's decedent for duodenal/bowel perforation, gangrenous bowel, peritonitis, septic shock, myocardial infarction, cardiac collapse and cardiopulmonary arrest during the decedent's admission to Brookhaven Memorial Hospital from February 21, 2005 through March 10, 2005.

In motion 007, the defendants Shashi Berdia, M.D. (Berdia) and Brookhaven Memorial Hospital Medical Center (Brookhaven Hospital) seek summary judgment dismissing the complaint insofar as asserted against them on the asserted bases that they did not depart from good and accepted medical practice during the care and treatment of the plaintiff's decedent and did not proximately cause his injuries and death. Dr. Berdia claims that he is a psychiatrist and did not render medical care and treatment to the decedent and, further, that there could be no lack of informed consent because he did not conduct an invasive procedure. Brookhaven Hospital claims that there is no proof that any independent act of negligence was committed by a nurse or employee of the hospital and, therefore, it cannot be held vicariously liable for the acts of decedent's private physicians.

In motion 008, the defendants Steven Ira Zucker, M.D. (Zucker) and Brookhaven Gastroenterology Associates, P.C. (Brookhaven Gastroenterology) seek summary judgment dismissing the complaint on the asserted bases that they did not depart from good and accepted standards of care and that they did not proximately cause the decedent's injuries and death.

The proponent of a summary judgment motion must make a prima facie showing of [*2]entitlement to judgment as a matter of law, by tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment, it must clearly appear that no material and triable issue of fact is presented (see, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395 [1957]). The movant has the initial burden of proving entitlement to summary judgment (see, Winegrad v. N.Y.U. Medical Center, 64 NY2d 851 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see, Winegrad v. N.Y.U. Medical Center, 64 NY2d 851 [1985]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR §3212[b]; see, Zuckerman v. City of New York, 49 NY2d 557 [1980]; Joseph P. Day Realty Corp. v. Aeroxon Prods., 148 AD2d 499 [2nd Dept., 1989]; (Castro v. Liberty Bus Co., 79 AD2d 1014 [2nd Dept., 1981]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065 [1979]).

In support of motion 007, the defendants Berdia and Brookhaven Memorial Hospital have submitted, inter alia, an attorney's affirmation, the affirmations of defendant Shashi Berdia, M.D. and defendants' expert Ira S. Goldman, M.D.; copies of the summons and complaint, answers and plaintiff's verified bill of particulars; an uncertified copy of decedent's death certificate; a signed copy of the transcript of the examination before trial of Shashi Berdia, M.D. dated June 18, 2008; unsigned copies of the transcripts of the examinations before trial of Nileshkumar G. Patel, M.D. and Steven Ira Zucker, M.D. dated October 21, 2008; and an uncertified copy of the decedent's medical record.

In support of motion 008, the defendants Steven Ira Zucker, M.D. and Brookhaven Gastroenterology Associates, P.C. have submitted, inter alia, an attorney's affirmation, the affirmation of defendants' expert Janet Beccaro, M.D.; copies of the summons and complaint, answers and plaintiff's verified bill of particulars; an uncertified copy of decedent's death certificate; a signed copy of the transcript of the examination before trial of Shashi Berdia, M.D. dated June 18, 2008; unsigned copies of the transcripts of the examinations before trial of Nileshkumar G. Patel, M.D., Angela Denison dated February 7, 2008, Dolores Ciaccio dated September 18, 2009, Choong Yul Cho, M.D. dated August 20, 2008 and Steven Ira Zucker, M.D. dated October 21, 2008; and an uncertified copy of the decedent's hospital record and the moving defendants' medical records for the decedent.

The unsigned copies of the deposition transcripts, as set forth above, are not in admissible form as required by CPLR §3212 (see, Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2nd Dept., 2008]; McDonald v. Maus, 38 AD3d 727 [2nd Dept., 2007]; Pina v. Flik Intl. Corp., 25 AD3d 772 [2nd Dept., 2006]), are not accompanied by an affidavit pursuant to CPLR §3116, and are not considered on this motion. The uncertified copies of the decedent's medical records and death certificate are not in admissible form pursuant to CPLR §3212. CPLR §3212 requires that an affidavit of a person having knowledge of the facts be submitted on a motion for summary judgment. The affirmation of defendant Shashi Berdia, M.D. fails to comport with the provisions of CPLR §2106. Physicians who are statutorily permitted to use an affirmation in lieu of an affidavit pursuant to CPLR §2106 are precluded from doing so when they are a party to an action. Thus, the affirmation is not in admissible form (see,CPLR §2106; see, Slavenburg Corporation v. Opus [*3]Apparel, Inc., 53 NY2d 799 [1981]).

The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (see, Holton v. Sprain Brook Manor Nursing Home, 253 AD2d 852 [2nd Dept., 1998], app denied 92 NY2d 818). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see, Derdiarian v. Felix Contracting Corp., 51 NY2d 308 [1980]; Prete v. Rafla-Demetrious, 224 AD2d 674 [2nd Dept., 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see, Fiore v. Galang, 64 NY2d 999 [1985]; Lyons v. McCauley, 252 AD2d 516, 517 [2nd Dept., 1998], app denied 92 NY2d 814; Bloom v. City of New York, 202 AD2d 465 [2nd Dept., 1994]).

To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice and containing an opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (see, Lifshitz v. Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759 [2nd Dept., 2004]; Domaradzki v. Glen Cove OB/GYN Assocs., 242 AD2d 282 [2nd Dept., 1997]). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury" (Bengston v. Wang, 41 AD3d 625 [2nd Dept., 2007]).

Dr. Berdia testified at her examination before trial that she works at the Brookhaven Hospital Clinic in Shirley and is paid by Brookhaven Hospital. She became licensed to practice medicine in the State of New York in 1993 and set forth her medical/psychiatric training and experience. She is board certified in psychiatry. She saw Mr. Ciaccio on February 24, 2005 on a psychiatric consult and again later that evening. He had previously been seen on February 23, 2005 by another psychiatrist, Dr. DeGuisepe, who was also on staff at Brookhaven Hospital. She set forth Mr. Ciaccio's past history, medications and diagnosis and stated he expressed a desire to stay on the medical floor to take care of his nausea caused by the tumor of the pancreas from which he was suffering. His diagnosis was that of major depressive disorder. She indicated that his red blood cell count and hemoglobin were lower than normal and she thought that it meant that he had a loss of blood. She also indicated that he lost thirty pounds. She did not speak with any of his physicians after seeing Mr. Ciaccio. Although he complained of nausea, she stated that she did not order any tests to determine the cause.

Dr. Ira S. Goldman has submitted an affirmation on behalf of defendants Shashi Berdia, M.D. and Brookhaven Memorial Hospital Medical. Dr. Goldman states that he is a physician duly licensed to practice medicine in the State of New York and is board certified in internal medicine and gastroenterology. He sets forth the materials he reviewed and states that he renders his opinions with a reasonable degree of medical certainty. He opines as follows: that, during the period of January [*4]17, 2005 up to the death of the patient on March 10, 2005, the care and treatment by Dr. Berdia and Brookhaven Memorial Hospital Medical Center was at all times appropriate; that Dr. Berdia, as a psychiatrist, treated Mr. Ciaccio for two visits on February 24, 2005 for psychiatric care and evaluation and did not perform a physical examination of the patient on either occasion according to her testimony and that Mr. Ciaccio was followed by other physicians concerning his medical status; that Dr. Berdia's role as a psychiatrist was to protect Mr. Ciaccio from himself, to treat his psychiatric conditions and to try to alleviate his anxiety, paranoia and depression and it was not Dr. Berdia's role as a psychiatrist to evaluate, test or diagnose any of Mr. Ciaccio's medical conditions which caused or contributed to his death, and she properly ensured that he was followed for medical consultation for his medical conditions.

Dr. Goldman further states that Nileshkumar G. Patel, M.D., a family practice physician, admitted Mr. Ciaccio to Brookhaven Memorial Hospital on January 17, 2005 through January 25, 2005 when he was discharged to the psychiatric inpatient department; that during the January 17, 2005 admission, Mr. Ciaccio had been found on the floor, unaware of how he got there; that he was seen by Dr. Cho, a psychiatrist, during this hospitalization, as well as by Stephen Zucker, M.D., a gastroenterologist. Dr. Zucker was called for consultation because Mr. Ciaccio had abnormal liver function tests and was complaining of abdominal pain. He had a history of a slow-growing pancreatic tumor and chronic obstructive pulmonary disease and was diagnosed with rhabdomylosis associated with muscle damage, pneumonia, a dilated pancreatic duct and mildly dilated bile ducts, cortical atrophy and post traumatic soft tissue swelling in the posterior parieto-occipital area of the scalp. Dr. Goldman also states that Dr. Patel's note of January 24, 2005 states that Mr. Ciaccio was medically stable for transfer from the medical unit to psychiatric care. He notes that Dr. Cho assessed Mr. Ciaccio upon admission as being agitated, disoriented, paranoid, dysphoric and irritable, with positive suicidal ideation and auditory hallucinations. Mr. Ciaccio had a long history of psychiatric treatment with multiple psychiatric in-patient stays. He was followed by Dr. Ahmad, a psychiatrist and Dr. Tita, a psychologist, on an out-patient basis. However, during this hospitalization, his mood and overall psychiatric condition improved. He was evaluated by Dr. Patel almost every day and complained intermittently of nausea and abdominal pain for which he was treated with Maalox and Tigan. He was discharged home on February 16, 2005.

Dr. Goldman further states that Mr. Ciaccio was seen in the emergency room of Brookhaven Hospital on February 22, 2005 with a history of a syncopal attack and a three inch laceration over his left eye. He left the emergency room to attend a doctor's appointment. He returned to the emergency room the following day and Dr. Patel admitted him until February 25, 2005. He was initially admitted to the telemetry unit. A psychiatric consult was called as Mr. Ciaccio stated he had no reason to live. On February 24, 2005, he was complaining of nausea and medicated for the same. Dr. Shashi Berdia saw Mr. Ciaccio on a psychiatric consult on follow up to the consult conducted by Dr. DeGuiseppe on February 23, 2005. She noted that his sleep and appetite were irregular and he had lost thirty pounds. He continued to complain of nausea. On February 25, 2005, he was transferred by Dr. Cho to the psychiatric unit as an involuntary admission for further care. Mr. Ciaccio had no further contact with Dr. Berdia after February 24, 2005, as his psychiatric condition was managed by Dr. Cho. Mr. Ciaccio was seen on February 26, 2005 on a medical consultation by [*5]Dr. Patel who managed his medical status thereafter on a continuing basis throughout the remainder of the hospitalization. On March 5, 2005 at 1:00 a.m., Mr. Ciaccio was found face down on the hospital floor with a large amount of coffee-ground material coming from his mouth and a 1-2 inch laceration above his left eye. He was cyanotic and unresponsive and was transferred to the medical unit under the care of Dr. Patel.

Dr. Goldman states that the EKG of March 5, 2005 revealed that Mr. Ciaccio had suffered an acute inferior wall myocardial infarction. A CT of the abdomen and pelvis suggested that he had a perforated organ for which a laparotomy was performed by Badri Nath, M.D. on March 6, 2005. Surgery revealed a peritonitis secondary to a perforated duodenal ulcer with extensive ischemic changes and gangrene of the right colon, and patchy areas of gangrene of the transverse colon to the splenic flexure, with ischemic changes in the descending colon as well, necessitating a subtotal colectomy and ileostomy. Post-operatively, Mr. Ciaccio did poorly, required reintubation on March 7, 2005, had pulmonary and cardiac instability, and died on March 10, 2005. According to the discharge summary, his final diagnosis was that of acute myocardial infarction, gastrointestinal bleeding, perforated duodenum, gangrene of the colon, status post subtotal colectomy, pneumonia, urinary tract infection, renal insufficiency, septic shock and cardiogenic shock.

Dr. Goldman opines with a reasonable degree of medical certainty that the conditions which caused or contributed to the death of Mr. Ciaccio were myocardial infarction, perforation of the duodenum, peritonitis, gangrene of the colon, pneumonia, renal insufficiency, septic shock, and cardiogenic shock and that these conditions were outside the field of psychiatry. Dr. Goldman states that there were no departures from accepted standards of practice by any nurse, technician, physician or other employee of Brookhaven Hospital. He states that the staff properly monitored Mr. Ciaccio's condition, cared for him, communicated with his treating physicians, documented and reported Mr. Ciaccio's complaints and properly administered appropriate medications to him. He continues that the orders were reasonable and it was appropriate for the hospital staff to carry out the orders. He adds that there were no departures which caused or contributed to the death of the decedent by Dr. Berdia or other Brookhaven Memorial Hospital employees.

Based upon the foregoing, it is determined that Dr. Berdia and Brookhaven Memorial Hospital have established prima facie entitlement to summary judgment dismissing the complaint, as they have demonstrated that neither Dr. Berdia nor employees of Brookhaven Memorial Hospital departed from the good and accepted standard of care and that they did not proximately cause the decedent's injuries and death.

The plaintiff has submitted a duly notarized expert affidavit ^[FN1] in opposition to the motion by Dr. Berdia and Brookhaven Memorial Hospital Medical Center wherein the expert, who is licensed to practice medicine in the State of New York and is board certified in internal medicine, sets forth [*6]the materials reviewed in rendering opinions based upon a reasonable degree of medical certainty. It is the plaintiff's expert's opinion that Brookhaven Memorial Hospital Medical Center was responsible for providing competent medical and nursing personnel to provide proper medical treatment and monitoring of Mr. Ciaccio during his hospital admission of February 22, 2005 and that they failed to do so. The plaintiff's expert states that when a known psychiatric patient is admitted after a syncopal episode and possible assault, the standard of care requires prompt recognition, testing and diagnosis for possible internal injuries, disease processes, or organic cause prior to attributing the patient's condition to psychiatric causes. He states these departures by Brookhaven Hospital and its staff were the proximate cause of the decedent's injuries.

The plaintiff's expert opines that when Mr. Ciaccio presented to the emergency department with extensive injuries and complaints of back pain, abdominal pain and nausea, emergency room protocol is to rule out a physical cause for the complaints. The expert continues that although a CT scan of Mr. Ciaccio's head was taken and a chest x-ray was ordered, the chest x-ray was underpenetrated. When Mr. Ciaccio was transferred to the medical floor for two days for cardiac monitoring to rule out a myocardial infarction, he was then involuntarily transferred to a psychiatric floor on February 25, 2005, despite his complaints of severe nausea and abdominal pain. During his hospitalization, Mr. Ciaccio continued to complain of increasingly severe nausea and indigestion as well as stomach ache, vomiting, back pain and chest pain. Although he gave a history of a recent thirty-pound weight loss, there was no further monitoring of his weight or food intake by the nursing staff. The expert continues that an unwitnessed episode of vomiting was recorded by the nursing personnel as "self-induced" and that Tigan was subsequently given for nausea without further investigation. He asserts that as Mr. Ciaccio's symptoms and complaints of nausea, epigastric pain and back pain continued and became increasingly severe during his ten days on the psychiatric floor, the medical and nursing staff failed to rule out or investigate any somatic cause for these increasing symptoms and complaints of gastro-intestinal problems. On March 5, 2005, Mr. Ciaccio was found to be unresponsive by the night nurse and a large amount of coffee-ground emesis, indicative of a gastro-intestinal bleed, was noted. He was then transferred to the intensive care unit and diagnosed with a myocardial infarction. The CAT scan of his abdomen was interpreted by the hospital radiologist as indicative of bowel obstruction but negative for intraperitoneal free air which would indicate a perforation of Mr. Ciaccio's intestinal tract. Consequently, the cause of Mr. Ciaccio's coffee-ground vomitus was not determined and abdominal surgery was not indicated. On March 6, 2005, Mr. Ciaccio's abdominal CAT scan was interpreted by a second hospital radiologist as being positive for free air. He was then taken to the operating room on March 6, 2005 where it was found that he had a perforated ulcer of the small bowel, peritonitis as well as extensive ischemic changes and gangrene of his colon. Following surgery, Mr. Ciaccio did poorly and was unable to be resuscitated when he suffered cardiac arrest on March 10, 2005.

The plaintiff's expert concludes that the delays in diagnosing and rendering proper medical intervention and the failure of the radiologists at Brookhaven Memorial Hospital to properly read the abdominal CAT scan, caused the delay in performing the surgical procedure to repair Mr. Ciaccio's small bowel perforation and exacerbated his abdominal peritonitis and large bowel gangrenous process. The findings during surgery, perforated ulcer of the small bowel, peritonitis as [*7]well as extensive ischemic changes and gangrene of his colon were consistent with his persistent complaints and symptoms of extreme abdominal pain, nausea and vomiting, bowel problems and weight loss. He states that the response by personnel at Brookhaven Hospital to his complaints was inadequate as it did nothing to determine the cause of his problem and, thus, it did not conform with proper and accepted standards of care. The expert opines that, had hospital personnel properly monitored and cared for Mr. Ciaccio, properly assessed his persistent abdominal symptoms and properly interpreted his abdominal CAT scan, the massive abdominal and gastro-intestinal insult that caused the serious injuries and led to the Mr. Ciaccio's death on March 10, 2005, would have been dramatically minimized, if not totally eliminated.

In light of the foregoing, it is determined that the plaintiff's expert has failed to raise a factual issue to preclude summary judgment dismissing the complaint as asserted against Dr. Berdia but has raised a factual issue to preclude summary judgment as to Brookhaven Memorial Hospital. The evidentiary submissions establish that Dr. Berdia saw Mr. Ciaccio on February 24, 2005 and that Dr. Choo transferred Mr. Ciaccio to the psychiatric floor. The plaintiff's expert opines that Mr. Ciaccio was transferred to the psychiatric floor without there first being a determination of the cause of his physical complaints and signs and symptoms of severe abdominal pain, nausea and vomiting. The plaintiff's expert has failed to raise a factual issue concerning the duties and responsibilities of a psychiatrist and does not opine that it was Dr. Berdia's duty or responsibility to diagnose and treat the plaintiff's decedent for a medical condition. Dr. Berdia has established prima facie that it was not her duty to do so and that she was responsible for Mr. Ciaccio's psychiatric care and treatment only. Accordingly, summary judgment is granted in favor of Dr. Berdia and the complaint insofar as asserted against her is dismissed.

The plaintiff's expert has raised factual issue to preclude summary judgment being granted to Brookhaven Memorial Hospital on the bases that the hospital staff and employees failed to properly monitor and assess Mr. Ciaccio's condition, and failed to properly interpret the abdominal CAT scan which revealed the presence of free air indicative of a perforation. There are also factual issues regarding whether the hospital staff caused and contributed to the delay in diagnosing Mr. Ciaccio's perforated intestine, ischemic changes, peritonitis, and gangrene, and the subsequent delay in performing surgery and treating his conditions, culminating in his death on March 10, 2005. Brookhaven Hospital has not established that the radiologist who interpreted Mr. Ciaccio's abdominal CAT scan were not employees of the hospital. A hospital or other medical facility is liable for the negligence or malpractice of its employees, however, that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient himself, unless the hospital knows that the patient is unaware of the dangers and novelty of the medical procedure proposed to be performed (see, Hill v. St. Clare's Hospital, 67 NY2d 72 [1986]). Here, Brookhaven has not established that the radiologist who interpreted Mr. Ciaccio's CAT scan as revealing no free air in the abdomen, was not an independent physician or was retained by the decedent himself to relieve the hospital of liability. There are further factual issues concerning whether or not the nursing staff at Brookhaven properly monitored and reported Mr. Ciaccio's response to pain medication and anti-emetics. Accordingly, summary judgment is denied as to Brookhaven Memorial Hospital Medical Center. [*8]

In support of their motion for summary judgment, the defendants Steven Ira Zucker, M.D. and Brookhaven Gastroenterology Associates, P.C. have submitted the affirmation of their expert, Janet Beccaro, M.D., a physician who is licensed to practice medicine in the State of New York and is board certified in internal medicine. She sets forth the materials she reviewed and her opinion with a reasonable degree of medical certainty that Dr. Zucker rendered care and treatment in accordance with good and accepted medical practice and did not contribute to the injuries alleged to have been suffered by the plaintiff's decedent. Dr. Beccaro states that Dr. Zucker saw Mr. Ciaccio on January 17, 2005 on a gastroenterology consult at Brookhaven Memorial Hospital while the plaintiff's decedent was a patient in the emergency room. He noted that Mr. Ciaccio had a pancreatic tumor and documented his abnormal liver function test. He performed an abdominal examination and found Mr. Ciaccio's abdomen was soft, had positive bowel sounds and was non-tender; he denied any nausea or abdominal complaints. Dr. Zucker ordered a CT of the abdomen and pelvis, an abdominal utlrasound and a Hepatitis panel, seeking to rule out gall stones and to evaluate the pancreatic lesion. The abdominal ultrasound revealed negative dilation and the CT documented a dilated pancreatic duct and common bile duct. Dr. Beccaro states that Dr. Zucker properly suspected that Mr. Ciaccio's abnormal liver function tests were a result of rhabdomolysis, or muscle breakdown, because the plaintiff had been found on the floor of his home. When Dr. Zucker saw Mr. Ciaccio on January 18, 2005 and January 20, 2005, his vital signs were stable, he had no abdominal pain and his abdomen had positive bowel sounds and was non-tender. A subsequent CT scan of the abdomen showed no change. Dr. Zucker recommended that Mr. Ciaccio follow up with Dr. Singh, his gastroenterologist, on an outpatient basis. Dr. Beccaro states that Dr. Zucker testified that he did not order an esophagogastroduodenoscopy as Mr. Ciaccio had no symptoms of abdominal pain, bleeding or dyspepsia and was without abnormal radiological findings; she continues that Mr. Ciaccio remained at Brookhaven Memorial Hospital until January 20, 2005 without complaints of abdominal pain or nausea.

It is Dr. Beccaro's opinion that Dr. Zucker came to the appropriate differential diagnosis of rhabdomyolsis or pancreatic cancer based on the plaintiff's complaints, clinical presentation, examination and review of diagnostic tests. She states that the appropriate testing was ordered and that it was appropriate not to perform an esophagogastroduodenoscopy based upon his lack of symptomatology. She continues that Mr. Ciaccio did not present with a duodenal perforation during the January 17, 2005 admission and that it was reasonable for Dr. Zucker to infer the abnormal liver function tests were a result of rhabdomyolsis and the pancreatic mass. Thus, she states, his discharge was appropriate on January 25, 2005 to the psychiatric unit. He was discharged home on February 14, 2005. Dr. Beccaro states that Dr. Zucker interpreted that Mr. Ciaccio's hematocrit and hemoglobin were low normal during January 17, 2005 through January 20, 2005 when he saw him; however, Dr. Beccaro states that she does not believe that these values indicated that Mr. Ciaccio was having any bleeding.

It is determined that Dr. Zucker and Brookhaven Gastroenterology have not established prima facie entitlement to summary judgment dismissing the complaint. Dr. Beccaro does not set forth the basis for her opinion that Mr. Ciaccio was not bleeding and she does not indicate what tests were done specifically to rule out whether or not he was bleeding. Although Dr. Beccaro states that [*9]she does not believe that the hemoglobin and hematocrit values were indicative of a bleed, she stated that Dr. Zucker interpreted the hematocrit and hemoglobin were low normal during January 17, 2005 through January 20, 2005 when he saw him. Dr. Berdia testified that she interpreted the hemoglobin and hematocrit tests as an indication that Mr. Ciaccio was bleeding. Thus, there are factual issues concerning whether the value of the hemoglobin and hematocrit were indicative of bleeding, whether the results required further testing and what specific tests were done to rule out that Mr. Ciaccio was not suffering any kind of internal bleeding. These factual issues preclude summary judgment being granted to Dr. Zucker and Brookhaven Gastroenterology Associates.

The plaintiff has not submitted an expert affidavit or affirmation concerning the care and treatment rendered by Dr. Zucker and Brookhaven Gastroenterology Associates. However, in that Dr. Zucker and Brookhaven Gastroenterology Associates have not established prima facie entitlement to summary judgment dismissing the complaint insofar as asserted against them, this Court need not consider the sufficiency of the plaintiff's opposition to the motion (see, Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]: Smalls v. AJI Industries, Inc, et al, 10 NY3d 733 [2008]).

Accordingly, the motion of Steven Ira Zucker, M.D. and Brookhaven Gastroenterology Associates for an order dismissing the complaint insofar as asserted against them is denied.

Based on the foregoing, it is

ORDERED that motion 007 by defendants Shashi Berdia, M.D. and Brookhaven Memorial Hospital Medical Center and motion 008 by defendants Steven Ira Zucker, M.D. and Brookhaven Gastroenterology Associates, P.C. are consolidated for the purpose of this determination; and it is further

ORDERED that motion 007 by defendants Shashi Berdia, M.D. and Brookhaven Memorial Hospital Medical Center for summary judgment dismissing the complaint insofar as asserted against them is granted as to Shashi Berdia, M.D. and is denied as to Brookhaven Memorial Hospital Medical Center; and it is further

ORDERED that motion 008 by defendants Steven Ira Zucker, M.D. and Brookhaven Gastroenterology Associates for an order dismissing the complaint insofar as asserted against them is denied.

Dated:June, 2011

Hon. William B. Rebolini, J.S.C.

FINAL DISPOSITIONXNON-FINAL DISPOSITION