Derusha v. Sellig, 92 A.D.3d 1193 (N.Y. App. Div. 2012). · Go Syfert
Derusha v. Sellig, 92 A.D.3d 1193 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
41 citation events (41 in the last 25 years) across 1 distinct court.
Strongest positive: Schrader v. Nichols (nyappdiv, 2021-10-21)
Treatment trajectory · 2012 → 2026 · click a year to view as-of
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Top citers, strongest first. 25 distinct citers. How cited ↗
discussed Cited as authority (rule) Schrader v. Nichols
N.Y. App. Div. · 2021 · confidence medium
As the proponent of a motion for summary judgment in a podiatric malpractice action, defendant bore the initial burden of establishing that she did not depart from accepted standards of practice in the treatment at issue or, if there was a departure, that any such deviation was not the proximate cause of any injury ( see Furman v DeSimone , 180 AD3d 1310, 1311 [2020]; Derusha v Sellig , 92 AD3d 1193, 1193 [2012]).
discussed Cited as authority (rule) Young v. Sethi
N.Y. App. Div. · 2020 · confidence medium
Pollina's affirmation was "detailed, specific and factual in nature and [did] not [merely] assert in simple conclusory form that [defendants] acted within the accepted standards of medical care" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [2001]; see Martino v Miller , 97 AD3d 1009, 1010 [2012]; Derusha v Sellig , 92 AD3d 1193, 1193-1194 [2012]).
cited Cited as authority (rule) Furman v. Desimone
N.Y. App. Div. · 2020 · confidence medium
Ctr. , 151 AD3d 1349, 1354 [2017]; Derusha v Sellig , 92 AD3d 1193, 1194 [2012]).
discussed Cited as authority (rule) Culver v. Simko
N.Y. App. Div. · 2019 · confidence medium
We reject that contention because plaintiff presented evidence that defendant was independently negligent ( see Datiz v Shoob , 71 NY2d 867, 868 [1988]; Derusha v Sellig , 92 AD3d 1193, 1195 [3d Dept 2012]).
discussed Cited as authority (rule) ContovLynch
N.Y. App. Div. · 2014 · confidence medium
Defendants had the initial burden of demonstrating that "there was no departure from accepted standards of practice or that plaintiff was not injured thereby" (Derusha v Sellig, 92 AD3d 1193, 1193 [2012] [internal quotation marks and citations omitted]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
discussed Cited as authority (rule) Conto v. Lynch
N.Y. App. Div. · 2014 · confidence medium
Defendants had the initial burden of demonstrating that “there was no departure from accepted standards of practice or that plaintiff was not injured thereby” (Derusha v Sellig, 92 AD3d 1193, 1193 [2012] [internal quotation marks and citations omitted]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
discussed Cited as authority (rule) Conto v. Lynch
N.Y. App. Div. · 2014 · confidence medium
Defendants had the initial burden of demonstrating that “there was no departure from accepted standards of practice or that plaintiff was not injured thereby” (Derusha v Sellig, 92 AD3d 1193, 1193 [2012] [internal quotation marks and citations omitted]; see Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
cited Cited as authority (rule) FriedlandvVassarBrothersMedicalCenter
N.Y. App. Div. · 2014 · confidence medium
Ctr., 97 AD3d 1060 , 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
cited Cited as authority (rule) Friedland v. Vassar Bros. Medical Center
N.Y. App. Div. · 2014 · confidence medium
Ctr., 97 AD3d 1060 , 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
cited Cited as authority (rule) Friedland v. Vassar Bros. Medical Center
N.Y. App. Div. · 2014 · confidence medium
Ctr., 97 AD3d 1060 , 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
discussed Cited as authority (rule) Doucett v. Strominger
N.Y. App. Div. · 2013 · confidence medium
As the proponent of a motion for summary judgment in a medical malpractice action, defendant “bore the initial burden of establishing that there was no departure from accepted standards of practice or that plaintiff was not injured thereby” (Derusha v Sellig, 92 AD3d 1193, 1193 [2012] [internal quotation marks and citations omitted]; see Helfer v Chapin, 96 AD3d 1270 , 1271 [2012]; Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
discussed Cited as authority (rule) Doucett v. Strominger
N.Y. App. Div. · 2013 · confidence medium
As the proponent of a motion for summary judgment in a medical malpractice action, defendant “bore the initial burden of establishing that there was no departure from accepted standards of practice or that plaintiff was not injured thereby” (Derusha v Sellig, 92 AD3d 1193, 1193 [2012] [internal quotation marks and citations omitted]; see Helfer v Chapin, 96 AD3d 1270 , 1271 [2012]; Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
cited Cited as authority (rule) Longtemps v. Oliva
N.Y. App. Div. · 2013 · confidence medium
Ctr., 97 AD3d 1060 , 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
cited Cited as authority (rule) Longtemps v. Oliva
N.Y. App. Div. · 2013 · confidence medium
Ctr., 97 AD3d 1060 , 1061 [2012]; Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
discussed Cited as authority (rule) Dugan v. Troy Pediatrics, LLP
N.Y. App. Div. · 2013 · confidence medium
With this evidence, defendants met their burden of establishing their prima facie entitlement to judgment in their favor as a matter of law, thus shifting the burden to plaintiff to demonstrate a triable question of fact (see Martino v Miller, 97 AD3d 1009, 1010 [2012]; Derusha v Sellig, 92 AD3d 1193, 1194 [2012]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Menard v Feinberg, 60 AD3d 1135, 1137 [2009]).
discussed Cited as authority (rule) Dugan v. Troy Pediatrics, LLP
N.Y. App. Div. · 2013 · confidence medium
With this evidence, defendants met their burden of establishing their prima facie entitlement to judgment in their favor as a matter of law, thus shifting the burden to plaintiff to demonstrate a triable question of fact (see Martino v Miller, 97 AD3d 1009, 1010 [2012]; Derusha v Sellig, 92 AD3d 1193, 1194 [2012]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Menard v Feinberg, 60 AD3d 1135, 1137 [2009]).
discussed Cited as authority (rule) Helper v. Chapin
N.Y. App. Div. · 2012 · confidence medium
Plaintiffs appeal and we now affirm. * As the proponent of summary judgment in a medical malpractice action, a defendant bears the initial burden of demonstrating that the medical treatment rendered was within acceptable standards of care or that his or her actions did not cause the claimed injuries (see Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]; Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
discussed Cited as authority (rule) Helper v. Chapin
N.Y. App. Div. · 2012 · confidence medium
Plaintiffs appeal and we now affirm. * As the proponent of summary judgment in a medical malpractice action, a defendant bears the initial burden of demonstrating that the medical treatment rendered was within acceptable standards of care or that his or her actions did not cause the claimed injuries (see Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]; Maki v Bassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855 [2011], lv dismissed and denied 18 NY3d 870 [2012]).
discussed Cited "see" LaFountain v. Champlain Valley Physicians Hospital Medical Center
N.Y. App. Div. · 2012 · signal: accord · confidence high
As the proponent of a motion for summary judgment in a medical malpractice action, defendants were required to establish as a matter of law that they did not depart from accepted standards of medical practice in their treatment of plaintiff or that such a departure, if it did exist, did not cause her injury (see Menard v Feinberg, 60 AD3d 1135, 1136 [2009]; accord Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
discussed Cited "see" LaFountain v. Champlain Valley Physicians Hospital Medical Center
N.Y. App. Div. · 2012 · signal: accord · confidence high
As the proponent of a motion for summary judgment in a medical malpractice action, defendants were required to establish as a matter of law that they did not depart from accepted standards of medical practice in their treatment of plaintiff or that such a departure, if it did exist, did not cause her injury (see Menard v Feinberg, 60 AD3d 1135, 1136 [2009]; accord Derusha v Sellig, 92 AD3d 1193, 1193 [2012]).
discussed Cited "see" Martino v. Miller
N.Y. App. Div. · 2012 · signal: accord · confidence high
As the movant for summary judgment in a medical malpractice action, defendant was required to establish that during his treatment of plaintiff, “ ‘there was no departure from accepted standards of practice or that plaintiff was not injured thereby’ ” (Menard v Feinberg, 60 AD3d 1135,1136 [2009], quoting Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]; accord Derusha v Sellig, 92 AD3d 1193, 1193 [2012]; see Hickey v Arnot-Ogden Med.
discussed Cited "see" Martino v. Miller
N.Y. App. Div. · 2012 · signal: accord · confidence high
As the movant for summary judgment in a medical malpractice action, defendant was required to establish that during his treatment of plaintiff, “ ‘there was no departure from accepted standards of practice or that plaintiff was not injured thereby’ ” (Menard v Feinberg, 60 AD3d 1135,1136 [2009], quoting Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]; accord Derusha v Sellig, 92 AD3d 1193, 1193 [2012]; see Hickey v Arnot-Ogden Med.
discussed Cited "see, e.g." HowardvStanger
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Ctr., 116 AD3d at 1285 ; see Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]; see also -5- 518207 518208 Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]) and, contrary to plaintiff's assertion, the fact that Stanger's license was under a stayed suspension at the time he prepared the subject affidavit does not render his affidavit inadmissible for purposes of the underlying motions (cf. Williams v Halpern, 25 AD3d 467, 468 [2006]).
discussed Cited "see, e.g." Howard v. Stanger
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Ctr., 116 AD3d at 1285 ; see Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]; see also Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]) and, contrary to plaintiffs assertion, the fact that Stanger’s license was under a stayed suspension at the time he prepared the subject affidavit does not render his affidavit inadmissible for purposes of the underlying motions (cf. Williams v Halpern, 25 AD3d 467, 468 [2006]).
discussed Cited "see, e.g." Howard v. Stanger
N.Y. App. Div. · 2014 · signal: see also · confidence medium
Ctr., 116 AD3d at 1285 ; see Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]; see also Derusha v Sellig, 92 AD3d 1193, 1193-1194 [2012]) and, contrary to plaintiffs assertion, the fact that Stanger’s license was under a stayed suspension at the time he prepared the subject affidavit does not render his affidavit inadmissible for purposes of the underlying motions (cf. Williams v Halpern, 25 AD3d 467, 468 [2006]).
Retrieving the full opinion text from the archive…
Timothy J. Derusha
v.
Robert G. Sellig
Appellate Division of the Supreme Court of the State of New York.
Feb 23, 2012.
92 A.D.3d 1193
Stein.
Cited by 25 opinions  |  Published
Stein, J.

In August 2001, plaintiff injured himself in his employer’s parking lot when his knee gave out. Plaintiff was examined at defendant Adirondack Orthopedic Physicians and Surgeons (hereinafter Adirondack) by defendant Robert G. Sellig (hereinafter defendant), a medical doctor at Adirondack.[1] In the course of his physical examination of plaintiffs knee at that time, defendant heard a “click over the medial joint line.” Based on this examination, defendant diagnosed plaintiff with a torn medial meniscus, referred him to defendant Douglas M. Petroski, another medical doctor at Adirondack, and requested authorization for a medial meniscectomy to be performed by Petroski. Twelve days later, defendant saw Petroski, who subsequently performed a medial meniscectomy and discovered that plaintiff did not have a torn medial meniscus. Plaintiff thereafter had multiple elective surgeries on his knee, followed by a knee replacement, which led to an infected prosthesis and staph infection. Ultimately, plaintiff elected to undergo an above-the-knee amputation. Plaintiff commenced the instant action for medical malpractice against, among others, Adirondack and several doctors at Adirondack, including defendant. Defendant moved for summary judgment dismissing the complaint against him. Supreme Court granted defendant’s motion and this appeal by plaintiff ensued.

We reverse. As the proponent of a motion for summary judgment in a medical malpractice action, defendant “ ‘bore the initial burden of establishing that there was no departure from accepted standards of practice or that plaintiff was not injured thereby’ ” (Menard v Feinberg, 60 AD3d 1135, 1136 [2009], quoting Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]). Here, plaintiff alleged that defendant deviated from the standard of care by, among other things, failing to properly examine, test, diagnose and treat plaintiffs knee injury and pain. Defendant “ ‘rebut[ted] plaintiff’s claim of [medical] malpractice with factual proof ” (Suib v Keller, 6 AD3d 805, 806 [2004], quoting Horth v Mansur, 243 AD2d 1041, 1042 [1997]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]) by submitting af[*1194] fidavits — including his own detailed affidavit (see Suib v Keller, 6 AD3d at 806) — deposition testimony and medical records. Defendant testified regarding, among other things, the standard of care applicable at the time of plaintiffs examination. In his affidavit, he specifically averred that, in his opinion, an MRI was not indicated for evaluation of plaintiffs left knee,[2] and that “no act or omission by [him] caused or contributed to any injury that [plaintiff] is alleging in this lawsuit.” This evidence was sufficient to establish defendant’s prima facie entitlement to judgment in his favor as a matter of law, thus shifting the burden to plaintiff to demonstrate a triable question of fact with regard to defendant’s departure from accepted medical practice and whether such departure was the proximate cause of plaintiffs injury (see Alvarez v Prospect Hosp., 68 NY2d at 324; Adams v Anderson, 84 AD3d 1522, 1523 [2011]; Caulkins v Vicinanzo, 71 AD3d 1224, 1226 [2010]; Menard v Feinberg, 60 AD3d at 1137).

To that end, plaintiff submitted the affidavit of Lawrence Weis, an orthopedic surgeon, who opined that defendant deviated from the applicable standard of care by, among other things, failing to “obtain an appropriate history,” “perform an appropriate physical exam,” or “obtain and confirm the diagnosis of [a] torn medial meniscus by an MRI.” Notably, Weis averred that a finding of a click over the medial joint line upon physical examination is an inadequate basis upon which to diagnose a medial meniscus tear. Weis further opined that defendant’s deviations from the standard of care resulted in plaintiff having to undergo an “unnecessary and an unindicated left knee arthroscopic surgery” and were a substantial factor in causing plaintiff to incur specified additional injuries. In our view, Weis’ affidavit was sufficient to demonstrate triable issues of fact regarding the appropriate standard of care and whether any deviation by defendant therefrom was a substantial factor in causing plaintiff’s injuries (see Hickey v Arnot-Ogden Med. Ctr., 79 AD3d 1400, 1401 [2010]; Menard v Feinberg, 60 AD3d at 1137-1138; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]), thereby precluding summary judgment (see Datiz v Shoob, 71 NY2d 867, 869 [1988]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Carter v Tana, 68 AD3d 1577, 1579-1580 [2009]).

Finally, defendant’s claim that he bears no liability to plaintiff[*1195] because he merely referred plaintiff to Petroski, who performed his own examination and made an independent diagnosis, is unavailing. Where, as here, “there is evidence in the record from which the jury could . . . conclude [ ] that defendant — the referring [physician] — had been independently negligent in diagnosing . . . plaintiffs condition, and that this misdiagnosis constituted a proximate cause of plaintiffs injuries . . . , defendant, as the initial wrongdoer, cannot escape liability merely by showing that the subsequent treating physician to whom plaintiff was referred was also negligent” (Datiz v Shoob, 71 NY2d at 868-869).

Rose, J.E, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.

1

This was the only time plaintiff saw defendant.

2

Defendant testified that, at the time of his physical examination of plaintiff in August 2001, the standard of care did not require an MRI, but that, at the time of his deposition in December 2009, the standard of care did require such a scan.