DECISION and ORDER In this medical malpractice action, defendant HOWARD J. REIFER, D.P.M, P.C., and HOWARD J. REIFER D.P.M., (collectively “defendant”) moves for summary judgment and an order dismissing the complaint of plaintiff MIGDALIA CRESPO (“plaintiff”), as Executrix of the Estate of MARTHA ORTIZ (“decedent”) as against them. Plaintiff opposes defendant’s application. FACTUAL BACKGROUND On November 4, 2009, decedent first presented for treatment of ingrown toenails. Decedent continued treating for ingrown toenails with defendant on April 21, 2010, May 19, 2010, June 9, 2010, May 30, 2012, June 27, 2012, and lastly on November 14, 2012. At his deposition, defendant explains that on some of the dates of treatment he performed a “wedge” resection on decedent for treatment of the painful ingrown nails. Decedent had a complex medical history prior to her interaction with defendant. Plaintiffs ailments included heart disease, peptic ulcer disease, hypertension, hyperlipidemia, diabetes mellitus with retinopathy, peripheral vascular disease with left leg claudication, asthma, sleep apnea, narcolepsy, schizophrenia, depression, among others. At some point after the last treatment by defendant decedent developed dry gangrene requiring a great toe amputation on her left foot on March 21, 2013. On January 14, 2014, decedent had a left leg amputation above the knee. Ultimately, the plaintiff passed away on September 22, 2014. Plaintiff commenced this action alleging defendant provided negligent podiatric treatment of the decedent from November 4, 2009, continuing through November of 2012. Such treatment resulting in the amputation of decedent’s toe, then leg, and eventual death. It is plaintiffs contention that defendant deviated from the good and accepted standard of care when he did not refer decedent to a vascular surgeon despite acknowledgement of her signs of vascular disease; the failure of which is alleged to be a proximate cause of the injury and ultimate death of decedent. Plaintiff also contends that there was no proof of informed consent prior to the completion of medical procedures on the decedent. LEGAL DISCUSSION In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff (Attia v. Klebanov, 192 AD3d 650 [2d Dept 2021] [internal citation omitted]). In response, the plaintiff bears the burden of raising a triable issue of fact regarding the element or elements on which the defendant has made its prima facie showing (id.) The court’s function on this motion for summary judgment is issue finding rather than issue determination (Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (Rotuba Extruders v. Ceppos, 46 NY2d 223 [1978]). “Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge…ruling on a motion for summary judgment” (Asabor v. Archdiocese of New York, 102 AD3d 524, 527 [1st Dept 2013] [citation and internal quotation marks omitted]). DISCUSSION In support of the instant motion, defendant alleges his treatment did not proximately cause decedent’s injuries or death. As relevant here, defendant submits: (1) an uncertified two-page consultation letter from a non-party physician detailing decedent’s co-morbidities; (2) uncertified records from defendant’s office; and (3) two expert affidavits that rely on same to conclude that defendant’s treatment was not the proximate cause of decedents injuries or death.1 Defendant failed to establish prima facie entitlement to summary judgment. To be sure, “records created in the regular course of business are admissible as business records to the extent they are germane to the diagnosis and treatment of the patient” (Viera v. Khasdan, 185 AD3d 405, 406 [1st Dept 2020]). Here, however, plaintiff challenges both the accuracy and veracity of the records defendant is relying on (c.f. Viera at 407; Carlton v. St. Barnabas Hosp., 91 AD3d 561, 562 [1st Dept 2012]). At some time in 2013, plaintiff sought and received decedent’s chart without any handwritten notations. Thereafter, the same chart was exchanged with handwritten notations by defendant. Defendant later testified at his deposition that he personally prepared the records to be exchanged because he anticipated the instant litigation. Significantly, defendant’s expert reports rely on the records with handwritten notations. In replying to plaintiffs protestations of inadmissibility, defendant offered no explanation whatsoever for the handwritten alteration. The business records exception is premised on the notion “that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant’s obligation is to have them truthful and accurate for purposes of the conduct of the enterprise” (People v. Kennedy, 68 NY2d 569, 579 [1986]). In altering the records in advance of litigation, defendant removed one of the underlying logical lynchpins of permitting uncertified records to be admissible under the business record exception: their trustworthiness. As such, the records are not in admissible form and will not be considered. Further, defendant offered a single page consult note from a non-party physician in the body of their moving papers to contest proximate cause. When the admissibility was challenged in opposition, defendant for the first time in reply submitted what they contend is the complete record which “cures” their moving papers. The Court also declines to consider this evidence “because it was submitted for the first time [in] reply papers in an attempt to remedy a fundamental deficiency in the moving papers and not to merely address plaintiffs opposition” (Blackstock v. Accede Inc., 194 AD3d 476 [1st Dept 2021]). In sum, the defendant failed to meet their prima facie burden of proffering evidence in admissible form to demonstrate entitlement to summary judgment. Further, although defendant alleges they moved for summary judgment on “all claims,” defendant failed to meet their prima facie burden by providing any documentary evidence demonstrating that they informed decedent of the foreseeable risks associated with her treatment (Viera, 185 AD3d at 406). Accordingly, it is hereby ORDERED that defendant’s motion is denied in its entirety, and it is hereby ORDERED that this matter is transferred to Judge Frishman, Part 34, as New York City Health and Hospitals Corporation is no longer a party to the action. This is the Decision and Order of the Court. Dated: March 9, 2022
