SHORT FORM ORDER

SUPREME COURT - STATE OF NEW YORKCOUNTY OF NASSAU - PART 25

Present: HON. WilLIAM R. laMARCAJustice

MARIA FELDMAN, as Executrix of the EstateFELICE FELDMAN,

Motion Sequence #006, #007,#008Submitted March 15, 2005

Plaintiff,

-against- INDEX NO: 20623/96

SOUTH NASSAU COMMUNITIES HOSPITAL,AHMED H. KHAPRA, M.D., METPATH lABORATORY,BADER MARIA PEDEMONTE-COIRA, M.D., ARTHUR V.

BROWN, M.D., P. , CHARLES L. SCHOCKET, M.D.,

ALVIN J. SlOVIN, M.D., and JOHN DOE, M.D.,

Defendants.

The following papers were read on these motions:

Notice of Motion (# 006 SOUTH NASSAU and KHAPRA)and Exhibit Appendix

........ ................... ....................... ....................

Notice of Motion (# 007 SCHOCKET).....................................

Notice of Cross-Motion (# 008 METPATH and COIRA)..............Plaintiff' s Affirmation in Opposition..........

.................. ...........

SOUTH NASSAU and KHAPRA Affirmation in Reply.................

SCHOCKET Reply Affirmation. ........ ...............

........... .................. ......

Plaintiff' s Sur-Reply......................................... .....

....... ............ ............

Reauested Relief

The motion (# 006) by Defendants, SOUTH NASSAU COMMUNITIES HOSPITAL

(hereinafter referred to as the "HOSPITAL" ) and AHMED H. KHAPRA, M.D., (hereinafter

referred to as "Dr. KHAPRA" ), for an order of this Court, pursuant to CPLR 9 3212, granting

summary judgment in favor of Defendants, HOSPITAL and Dr. KHAPRA, and dismissing

the Plaintiffs complaint in its entirety is DENIED.

The motion (# 007) by Defendant, CHARLES L. SCHOCKET, M. D. (hereinafter

referred to as "Dr. SCHOCKET"), for an order of this Court, pursuant to CPLR 93212

granting summary judgment dismissing Plaintiffs claims as against Defendant, Dr.

SCHOCKET, is likewise DENIED.

The motion (# 008) by Defendants , METPATH LABORATORY (hereinafter referred

to as "METPATH" ) and BADER MARIA PEDEMONTE-COIRA, M.D., (hereinafter referred

to as "Dr. COIRA" ), for an order of this Court, pursuant to CPLR 93212, granting summary

judgment dismissing Plaintiff's complaint against the Defendants, METPATH and Dr.

COIRA, along with the cross-claims of the defendants herein, on the basis that there is no

causal relationship between the alleged acts and/or omissions of the moving defendants

and the damages alleged by the Plaintiff, is also DENIED.

Background

On or about December 6 , 1993, until on or about May 25, 1995, the now deceased

FELICE FELDMAN (hereinafter referred to as "Ms. FELDMAN"), was seen by Defendant,

ARTHUR BROWN, M. D. (hereinafter referred to as "Dr. BROWN") for a variety of

complaints, including various skin complaints. On Saturday, January 7, 1995, Ms.

FELDMAN woke up and noticed that the front portion of her neck was swollen. As a result

on Monday, January 9, 1995, Ms. FELDMAN presented to Dr. BROWN' office.

Thereafter, on or about January 17, 1995, at the recommendation of Dr. BROWN , Ms.

FELDMAN presented to Horizon Medical Imaging, P.C., for a thyroid scan. Also at the

request of Dr. BROWN, on January 27, 1995, Ms. FELDMAN presented to Dr. Alan I. Blum,

a pulmonary specialist, for an evaluation of the swellng on the inferior aspect of the neck

and the superior aspect of the chest in the pre-tracheal space. On the same day, Ms.

FELDMAN was subsequently referred to and seen by defendant, ALVIN J. SLOVIN, M.

(hereinafter referred to as "Dr. SLOVIN" ), a thoracic surgeon. Dr. SLOVIN recommended

that the patient, Ms. FELDMAN, undergo a biopsy of a mediastinal mass that was

discovered as a result of the examinations and imaging conducted by the various

physicians and medical providers.

Thereafter, on January 30, 1995, Ms. FELDMAN was admitted to the HOSPITAL

where she underwent a mediastinoscopy and biopsy. The surgery was performed by Dr.

SLOVIN. The same day, January 30, 1995, Dr. SLOVIN sent the patient's, Ms.

FELDMAN' s, tissue specimen consisting of mediastinal mass tissue for an intraoperative

consultation to Dr. KHAPRA, a board certified anatomic pathologist and Director of the

HOSPITAL' s Department of Pathology. Dr. KHAPRA examined the slides of the frozen

specimen under a microscope, observed a tumor in the specimen and noted the existence

of abnormal tissue. Dr. KHAPRA thereafter advised Dr. SLOVIN, the operating surgeon,

of the presence of a tumor and the need for further specialized pathological analysis. As

a result, he arranged for the specimens to be forwarded to an outside facilty, namely

METPA TH. METPA TH' s employee, Dr. COIRA, a hematopathologist, received and

reviewed Ms. FELDMAN's pathological studies on behalf of METPA TH.

In the mean time, Ms. FELDMAN, was discharged from the HOSPITAL on January

31, 1995 and was instructed, at that time, to follow up with her private physicians.

After reviewing Ms. FELDMAN's biopsy slides, Dr. COIRA observed a cellular

proliferation with large cells which indicated a differential diagnosis of Hodgkins Disease.

Dr. COIRA thereafter indicated in her immunocytochemistry consultation report, that her

interpretation of the excised tissue sample " indicate(d) the presence of Reed-Sternberg cell

associated antigens, in these cells, and together with the morphologic findings are

consistent with Hodgkin s disease. See Immunocytochemistry Consultation Report

prepared by Dr. Coira.

As testified to at her examination before trial , Dr. COIRA also took steps to rule out

that the Plaintiff was suffering from non-Hodgkins lymphoma. At her EST, Dr. COIRA

testified as follows:

Doctor, did you take any steps to rule out that the patient wassuffering from non-Hodgkins lymphoma?Yes.What steps did you take?I did, I stained the cells with the stains to Band T associated antigens.What was your finding?That there were small cells in the biopsy that were positive, some ofthem for B and some of them for T. And in order for you to have anon-Hodgkins lymphoma the cells have to be positive for either B orT cell antigens.Either B or T?Either or, not both, like here. So that's excluding a non-Hodgkins

lymphoma.See, Dr. Coira EBT, pages 87-

On February 13, 1995, Dr. KHAPRA received the results of the specialized

immunocytochemistry studies specifically undertaken at METPATH to provide a definitive

diagnosis as to the specific type of lymphoma Ms. FELDMAN suffered from. Dr. COIRA'

report noted, among other things, that these results indicated the presence of Reed-

Sternberg cells associated with antigens which togetherwith the morphologic findings were

consistent with Hodgkin s disease.

After receiving the report and findings from METPATH on or about February 13,

1995, Dr. KHAPRA prepared a pathology report. Dr. KHAPRA's report indicated that the

Plaintiff had malignant lymphoma Hodgkin s disease and that the immunocytochemistries

which were performed by METPA TH suggested that tumor cells contained Reed-Sternberg

cells.

Also referred by Dr. Blum , on or about February 2, 1995, Ms. FELDMAN presented

to Dr. SCHOCKET, an oncologist, for evaluation and treatment. Upon the completion of

a physical examination, Dr. SCHOCKET's impression was that Ms. FELDMAN had

Hodgkin s disease , nodular sclerosis, superior vena cava syndrome and a probable pleural

effusion. Dr. SCHOCKET noted that the staging of this tumor was probably a IV B and that

the prognosis was poor. Dr. SCHOCKET recommended chemotherapy for this condition.

On February 8, 1995, Ms. Feldman was again seen by Dr. SCHOCKET and was

given chemotherapy. Dr. SCHOCKET saw Ms. FELDMAN from February 3, 1995 until

June 17, 1995 and administered chemotherapy on multiple occasions. After the

chemotherapy was administered , Dr. SCHOCKET was of the opinion that the patient, Ms.

FELDMAN, was improving and noted that her itching had subsided and had disappeared

somewhere after the first or second course of chemotherapy. In June 1995, Ms.

FELDMAN was again seen by Dr. SCHOCKET who noted that her complaints of itching

had come back and, on June 17 , 1995, the patient was referred to Memorial Sioan-

Kettering Cancer Center for evaluation and treatment. Ms. FELDMAN was never seen

again by Dr. SCHOCKET.

Ms. FELDMAN was seen and treated at Memorial Hospital for Cancer and Alled

Disease and was treated with different types of chemotherapy as well as a blood stem cell

transplant. Notably, she was admitted to that facilty on July 17, 1996 with a diagnosis of

relapsed diffuse large cell lymphoma, status post autologous peripheral blood stem cell

transplantation. She was subsequently discharged and underwent various treatment

modaliies, including whole body radiation. Ms. FELDMAN passed away on May 24, 1997.

The Plaintiff, MARLA FELDMAN, as Executrix of the Estate of FELICE FELDMAN

timely commenced the within medical malpractice action against Defendants,

inter alia the

HOSPITAL, Dr. KHAPRA, Dr. SCHOCKET, METPATH and Dr. COIRA, on July 23,1996.

Issue was joined as to the HOSPITAL and Dr. KHAPRA on August 23, 1996 and

September 13, 1996, respectively. Issue was joined on behalf of Dr. SCHOCKET on

August 22, 1996. It is unclear as to when Defendants, METPATH and Dr. COIRAjoined

issue in the instant medical malpractice action.

The Law

To establish liabilty in a medical malpractice action, a plaintiff must prove that the

defendant deviated from good and accepted standards ofmedical practice, and that the

departure was the proximate cause of the injury.See, Hanley v Sf. Charles Hosp. and

Rehabiltation Center 307 AD2d 274, 763 NYS2d 322 (2 Dept. 2003); see also, Prestia

v Mathur, 293 AD2d 729, 742 NYS2d 80 (2 Dept. 2002); Prete v Rafla-Demetrious, 224

AD2d 674 , 638 NYS2d 701 (2 Dept. 1996). A party moving for summary judgment must

make a prima facie showing of entilement to judgment as a matter of law, offering suffcient

evidence to eliminate any material issues of fact.

See, Winegrad v New York Univ. Med.

Center, 64 NY2d 851, 487 NYS2d 316, 476 NE2d 642 (C. A. 1985) ; Zuckerman v City

New York 49 NY2d 557 , 427 NYS2d 595, 404 NE2d 718 (C.A. 1980).

When the Defendant moves for summary judgment , the supporting papers must set

forth everything that the Defendant did during the treatment of the patient and indicate that

the treatment of the patient was not the proximate cause of the patient's complaints or

injuries. See, Kleinert v Begum, 144 AD2d 645 , 535 NYS2d 43 (2 Dept. 1988). Thus , in

a medical malpractice action , a Defendant's motion for summary judgment dismissing the

complaint as against the Defendant is properly granted where there is testimony by the

physician or other supporting expert evidence that the physician did not deviate from good

and accepted medical practices. See, Wind v Cacho, 111 AD2d 808, 490 NYS2d 345 (2

Dept. 1985). Bare conclusory allegations by the Defendants, that they did not deviate from

good and accepted medical practices, with no factual relationship to the alleged injury

however, will not establish that the cause of action has no merit so as to entitle the

Defendants to summary judgment. See, Winegrad v New York Univ. Medical Ctr., supra.

In this case , the Plaintiff has alleged that the HOSPITAL , despite pathologic evidence

to the contrary, failed to diagnose Ms. FELDMAN's condition as non-Hodgkin s lymphoma

and failed to provide Ms. FELDMAN with skiled and experienced pathological analysis

during her two day admission from January 30, 1995 to January 31 , 1995. As against Dr.

KHAPRA, Plaintiff alleges that Dr. KHAPRA, despite pathologic evidence that the Plaintiff

suffered from non-Hodgkin s lymphoma , misdiagnosed Plaintiffs condition as Hodgkin

lymphoma, failed to properly and completely review pathology materials under a microscope

in the face of questionable findings and failed to appreciate the pathological significance of

large mononuclear and binuclear cells positive of Reed-Sternberg associated antigens.

In support of their motion for summary judgment (# 006), Defendants, HOSPITAL

and Dr. KHAPRA, submit the pleadings , the depositions of all parties, Dr. KHAPRA's own

sworn affidavit, as well as the affidavit of expert James A. Strauchen , M. , a board certified

pathologist who specializes in the differentiation of lymphoma and who is an attending

pathologist at Mt. Sinai Medical Center.

In his affidavit , Dr. KHAPRA unequivocally states, " .I respectfully submit that my

analysis of tissue samples excised from Felice Feldman were undertaken in accord with

good and accepted standards of medical and pathological practice and that there is no

causal connection between my analysis of said tissue samples and any injuries alleged to

have been sustained by Felice Feldman. See, Defendants ' Notice of Motion, Exhibit

Paragraph 6.

In addition, Dr. Strauchen , in his expert affidavit, states , in pertinent part, as follows:

13.

14.

15.

Based on my review of the medical records and deposition testimony,it is my opinion, with a reasonable degree of medical certainty, that thecare and treatment rendered to the Plaintiff by (the Hospital), its agentsand employees, namely (Dr. Khapra), in diagnosing Felice Feldmancondition , was within the realm of good and accepted medical andpathological practice.

(Dr. Khapra)'s diagnosis of Hodgkin s Disease was reasonable and

within good and accepted standards of medical and pathological

practice. (Dr. Khapra)'s reading of the frozen sections, as indicated inthe hospital chart, was correct, acceptable and reasonable. The tissuewas correctly identified as a neoplasm (tumor) with findings consistentwith lymphoid lesions. The standard of pathological care, under thecircumstances, is not to make a definitive diagnosis at the time ofsurgery but to preserve the tissue for appropriate studies. It is myopinion with a reasonable degree of medical certainty that neither (theHospital) nor (Dr. Khapra) deviated or departed from good andaccepted medical and pathological practice.

The pathological specimens had many features of Hodgkin s Disease.

There were, additionally, Reed-Sternberg-like cells. Some of those

16.

17.

cells had the appearance of lacuna cells, which are found in nodularsclerosing Hodgkin s Disease. The specimens also demonstratedfeatures of non-Hodgkin s lymphoma with sheets of Reed-Sternberg-like cells, which are seen in non-Hodgkin s lymphoma but can also beseen in the syncytial variant of nodular sclerosing Hodgkin s Disease.

Under the circumstances, it is my opinion within a reasonable degreeof medical certainty that (Dr. Khapra) correctly and in accord with goodand accepted practice referred Felice Feldman s pathological studiesto Metpath Laboratory, given the complexity of the pathological resultsand the immunocytochemistry studies required, that were not availablein the community hospital setting. Additionally, it was acceptable andreasonable to incorporate (Dr. Coira)'s findings, after the specializedimmunocytochemistry studies were undertaken at (Metpath) into thepathology report of February 13, 1995. It is my opinion , within areasonable degree of medical certainty, that there were no deviationsor departures from good and accepted standards of medical practiceand pathological by the hospital or (Dr. Khapra).

Finally, it is my opinion, with a reasonable degree of medical certainty,that the treatment and care rendered by (the Hospital) and (Dr. Khapra)did not proximately cause the injury to Ms. Feldman. (Dr. Khapra)'sdiagnosis was reasonable and acceptable. There is no correlationbetween (Dr. Khapra)'s pathology analysis and Felice Feldmanalleged injuries.

Similarly, Defendant , Dr. SCHOCKET, in support of his motion for summary judgment

(# 007), submits the pleadings , depositions of all parties, and the affirmation of Dr. Ivan

Rothman , a physician with board certification in internal medicine and hematology and

oncology.

As against Dr. SCHOCKET, Plaintiff alleges medical malpractice and lack of informed

consent; specifically that Dr. SCHOCKET was negligent in diagnosing the Ms. FELDMAN'

condition as Hodgkin s lymphoma, Stage II-B, and then treating herforthis condition despite

pathologic evidence that she had non-Hodgkin s lymphoma , failing to personally review the

pathology materials under a microscope, failng to diagnose Ms. FELDMAN's condition as

non-Hodgkin s lymphoma and failng to consult with and refer Ms. FELDMAN to other

physicians for evaluations and failing to provide informed consent.

Dr. Rothman, in his affirmation states, in pertinent part, as follows:

10.

Based upon my review of the materials related to this file, as well asmy own training, knowledge and experience in the field of hematologyand oncology, it is my opinion within a reasonable degree of medicalcertainty that any alleged delay by Dr. Schocket in the diagnosis andtreatment of non-Hodgkins lymphoma in this patient did not adverselyaffect the patient, Felice Feldman, and did not constitute the proximatecause of her claimed injuries.

It is my opinion, within a reasonable degree of medical certainty, thatit was appropriate for Dr. Schocket to rely on the pathology

interpretation of the slides in continuing chemotherapy and as an

oncologist rather than a pathologist, had no obligation to independentlyreview the slides.

From my review of the records, as well as the deposition testimony ofall parties and non-parties it is my opinion within a reasonable degreeof medical certainty that Felice Feldman was not curable no matterwhat type of lymphoma she had when she was first seen by

Dr.

Schocket. The basis of my opinion regarding the patient's lack of

curability is the large size of the patient's mass as evidenced by theCAT scan performed in January of 1995, the fact that she had pruritusfor at least 18 to 24 months prior to being seen by Dr. Schocket

, which

in retrospect was in all probabilty a manifestation of the lymphoma,

and the fact that the patient's lymphoma was non responsive to all

treatment for both Hodgkins and non-Hodgkin s lymphoma, which

included chemotherapy, radiation and stem cell transplantation.

11. It was also appropriate for Dr. Schocket to administer the kind of

chemotherapy he did, especially in view of the fact that the pathologyreport and patient's clinical picture were consistent with a diagnosis ofHodgkin s lymphoma.

12. In conclusion, it is my opinion, within a reasonable degree of medicalcertainty, that no act or omission by Dr. Schocket proximately causedany injury to this patient and any alleged delay in diagnosis and

treatment as to Dr. Schocket did not proximately cause any injury tothis patient.

See, Defendant's Notice of Motion, Exhibit

The affidavits submitted by the Defendants, HOSPITAL , Dr .KHAPRA and Dr.

SCHOCKET, in support of their motions for summary judgment establish a prima facie case

that the treatment of the patient, FELICE FELDMAN, was not negligent and that they are

entitled to judgment as a matter of law. It is well settled on a motion for summary judgment

that, after movant has made a prima facie showing that they are entitled to judgment as a

matter of law, the other party must establish the existence of material facts of sufficient

import to create a triable issue of fact. See, Hellnger v Law Capital, Inc. 124 AD2d 182

509 NYS2d 50 (2 Dept. 1986); Shaw v. Time-Life Records, 38 NY2d 201, 379 NYS2d 390,

341 NE2d 817 (C.A. 1975).

In opposition to the motions for summary judgment by the HOSPITAL, Dr. KHAPRA

and Dr. SCHOCKET , Plaintiff submits the affirmation of a physician , Board Certified in

Internal Medicine, Medical Oncology and Hematology. Plaintiffs expert states , in pertinent

part:

The slides prepared from the biopsy taken from Ms. Feldman s tumorat (the Hospital) clearly indicated the presence of non-Hodgkinlymphoma.

In particular, Ms. Feldman was suffering from Primary mediastinallarge B cell lymphoma (PMLBL), which is a form of non-Hodgkinlymphoma. PMLBL is a distinct subtype of diffuse large B celllymphoma (DLBCL) that accounts for 6% of all non-Hodgkinlymphoma cases. The pathological and clinical characteristics ofPMLBL have been very well documented. PLLBL is characterized bya morphologic and immunophenotypic picture comprise of a diffuseproliferation of medium to large cells with clear cytoplasm and thepresence of sclerosis that causes a compartmentalization pattern. Allof the foregoing characteristics are revealed in the slides preparedfrom the frozen section taken from Felice Feldman s tumor.

Based upon Ms. Feldman s medical history, symptoms at presentationand analysis of the slides, it is my opinion with a reasonable degree ofmedical certainty, that Ms. Feldman should have been diagnosed byDrs. Khapra , Coira and Schocket as suffering from PMLBL. It is alsomy opinion , with a reasonable degree of medical certainty, that hadMs. Feldman been correctly diagnosed and treated for PMLBL, therewould have been a greater than 50% chance of her achieving a clinicalremission.See, Plaintiff's Affirmation in Opposition to Summary Judgment, Exhibit

In a medical malpractice action, a Defendant's motion for summary judgment

dismissing the Complaint as against the Defendant is properly granted where the Plaintiffs

affidavit of merit by a medical expert fails to state that the Defendant's deviation or departure

form accepted practice was the proximate cause of Plaintiffs injuries. See, Amsler v Verrili

119 AD2d 786; 501 NYS2d 411 (2 Dept. 1986). In this case , however, it is readily

apparent that th affidavit of the Plaintiff's medical expert sufficiently and competently

establishes the existence of issues of fact, inter alia as to whether the Defendants were

negligent in failing to diagnose the Plaintiff with non-Hodgkin s lymphoma. Summary

judgment may not be awarded in a medical malpractice action where the parties adduce

conflicting opinions of medical experts. See Barbuto v Winthrop Univ. Hosp. 305 AD2d 623,

760 NYS2d 199 (2 Dept. 2003); Fotinas v Westchester County Med. Ctr. 300 AD2d 437,

752 NYS2d 90 (2 Dept. 2002). When experts offer conflicting opinions, a credibilty

question is presented requiring a jury s resolution. See Barbuto v Winthrop Univ. Hosp.

supra; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650, 724 NYS2d

432 (2 Dept. 2001).

It is well setted that in support of a motion for summary judgment, the movant must

establish an entitlement to judgment as a matter of law by producing evidence

demonstrating the absence of any genuine issues of fact. See Alvarez v Prospect Hosp.

68 NY2d 320, 508 NYS2d 923 , 501 NE2d 572 (C. A. 1986); Shay v Polambaro, 229 AD2d

697 645 NYS2d 888 (3rd Dept. 1996); Douglass v Gibson 218 AD2d 856 , 630 NYS2d 401

Dept. 1995). The evidence produced by the movant must be viewed in the light most

favorable to the non-movant, affording the non-movant every favorable inference. See

Horth v Masur, 243 AD2d 1041 , 663 NYS2d 703 (3 Dept. 1997).

To the extent that the parties ' and their experts have reached opposing conclusions

with respect to , among other things, proximate causality, the overall propriety of Defendants

treatment, and the conflicting claims as to what was said and done during the Plaintiffs

contact with the Defendants, those disputed contentions "present() a credibilty battle

between the parties ' experts, " raising " issues *** properly left to a jury for *** resolution.

See, Barbuto v Winthrop University Hosp. , supra; see also, Halkias v Otolaryngoloy-Facial

Plastic Surgery Assocs. , supra; cf., Weissman v Wider 235 AD2d 474, 652 NYS2d 1006

Dept. 1997).

With these guidelines in mind, and giving the non-movant, Plaintiff, the benefi of

every favorable inference (See, Robinson v Strong Memorial Hosp. 98 AD2d 976, 470

NYS2d 239 (4 Dept. 1983); see also, Blake- Veeder Realty, Inc. v Crayford, 11 a AD2d

1007 , 488 NYS2d 295 (3 rd Dept. 1985)), it is this Court's conclusion that there remain

material issues of fact , as to whether the Defendants were negligent in failng to diagnose

the Plaintiff with non-Hodgkin s lymphoma, thus precluding a grant of summary judgment

in Defendants ' , HOSPITAL , Dr. KHAPRA and Dr. SCHOCKET's favor.

As to Motion #008, Defendants, METPA TH and Dr. COIRA , relying exclusively on the

pleadings, proceedings and the affirmation of Dr. Rothman, Dr. SCHOCKET's expert, also

move for summary judgment seeking dismissal of the Plaintiffs complaint along with the

cross-claims of the Defendants ' on the basis that there is no causal relationship between

the alleged acts and/or omissions of the moving Defendants and the damages alleged by

the Plaintiff.

It should be noted at the outset that CPLR 3212(b) states as follows

(b) Supporting proof; grounds; relief to either party.A motion for summary judgment shall be supported byaffidavit , by a copy of the pleadings and by otheravailable proof, such as depositions and writtenadmissions.

See, McKinneys CPLR 3212(b).

Similarly, CPLR 2214 states in pertinent part:

(a) Notice of motion. A notice of motion shall specifythe time and place of the hearing on the motion , thesupporting papers upon which the motion is basedthe relief demanded and the grounds therefor.

(c) Furnishing papers to the court. Each party shallfurnish to the court all papers served by him. Themoving party shall furnish at the hearing all otherpapers not already in the possession of the courtnecessary to the consideration of the questionsinvolved. Where such papers are in the possession ofan adverse party, they shall be produced by him atthe hearing on notice served with the motion papers.Only papers served in accordance with the provisionsof this rule shall be read in support of, or in oppositonto, the motion unless the court for good cause shallotherwise direct.

See, McKinneys CPLR 2214(a), eg.

Defendants , METPA TH and Dr. COIRA's, motion for summary judgment cannot be

considered at this juncture because the moving papers fail to annex, most notably,

Defendants ' Verified Answerto the Plaintiffs Complaint in which the Defendants presumably

, ,

asserted cross-claims for which the Defendants now seek summary judgment. See, Darcy

v Olympic York Rank Co. , 2002 WL 377036 (N.Y. Sup. ), 2002, NY Slip Op. 40023 (U);

McMahon v Wolverine Worldwide, Inc., 649 NYS2d 110, 233 NYS2d 587 (3 Dept. 1996);

Lawlor v County of Nassau, 166 AD2d 692, 561 NYS2d 644 (2 nd Dept. 1990). As such,

Defendants ' motion for summary judgment is DENIED.

All further requested relief not specifically granted is denied.

This constitutes the decision and order of the court.

Dated: June 3, 2005

WIL I M R. LaMARCA , J.

ENTEREDJUN 0 9 Z005

SlU COUNTY88 Clil' OfF

" '"

TO: Bruce D. Katz , Esq.Attorney for Plaintiff225 Broadway, 37 FloorNew York , NY 10007

Bartlett, McDonough , Bastone & Monaghan, LLPAttorneys for DefendantsSouth Nassau Communities Hospital and Ahmed H. Khapra, MD

300 Old Country RoadMineola, NY 11501

Hiscock & Barclay, Esqs.Attorneys for DefendantsMetpath Laboratory, Bader Maria Pedemonte-Coira , MD110 M&T CenterThree Fountain PlazaBuffalo , NY 14203

Lewis, Johs, Avallone & Kaufman , Esqs.Attorneys for DefendantCharles L. Schocket , MD

425 Broad Hollow RoadMelvile , NY 11747

Poisson & Hackett , Esqs.Attorneys for DefendantArthur Brown , MD1225 Franklin AvenueGarden City, NY 11530

feldman-southnassaucommunltieshosp,etal ,#06,#07 ,#08/sumjudg