Judy C. Selmeci

Chris Peticca (Associate-White Plains, NY) defended a hospital in a case in which the plaintiff pled that the our client’s conduct was “careless” and “reckless,” and negligent. In conferences and, ultimately, by motion submitted on the court’s invitation, Chris convinced Judge Frishman (Bronx County) to strike the “careless” and “reckless” language from the pleadings. The plaintiff appealed. On the appeal handled by Julia Audibert (Associate-New York, NY) and Judy Selmeci (Partner-New York, NY), the plaintiff challenged the timeliness of the motion and argued that the possibility of punitive damages lingers, including pursuant to Pub. H. Law 2801-d. We pointed out in response that none of that is right, arguing that the motion was made when the judge invited the defendant to submit it, so it was entirely within the court’s discretion to entertain the motion. In addition, Julia and Judy argued, the defendant is not a residential health care facility, so PHL 2801-d is not applicable. In addition, the plaintiff had not pled any facts to support a punitive claim and there could be no dispute that the language was prejudicial, and an order striking prejudicial language from pleadings is not appealable and the plaintiff had not sought leave to appeal. The First Department agreed that the order was not appealable but sua sponte granted the plaintiff leave to appeal – only to then agree with all of our other points and affirm.   

Alan Friedberg (Senior Counsel-White Plains, NY), Christopher Peticca (Associate-White Plains, NY), and Judy Selmeci (Partner-New York, NY) obtained affirmance of a summary judgment motion on behalf of our major hospital client, from the Appellate Division, First Department. Alan argued the motion before the five-panel bench, which asked probing questions of the plaintiff’s counsel, who was appealing the dismissal of his case by Bronx Supreme Court because the expert’s affidavit submitted by the plaintiff was insufficient to refute the allegations of the two experts presented by the defense. The EMTs that transported plaintiff’s decedent, while not employees of our client, wore hospital insignias, and the ambulance had a hospital emblem, as the result of a contract with the employers of the EMTs, which subsequently went bankrupt. Accordingly, plaintiff’s counsel was arguing that the EMTs were ostensible employees of our client. Essentially, the argument was that plaintiff’s decedent was provided with oxygen as the result of her abdominal pain, and when she arrived in the emergency room, her blood oxygen level was normal at 100 percent. Accordingly, while plaintiff’s decedent went into a code within nine minutes of arriving in the emergency room, the experts pointed out that she was properly treated for the abdominal pain and even for respiratory distress as she was rapidly brought to the hospital emergency room and was in stable condition at the time she arrived at the hospital’s emergency room. Both the Supreme Court Justice in Bronx County, and the Appellate Division Bench, readily understood the defense made out by the defense team, and appropriately granted and affirmed a dismissal in this case.

Emily L. Fernandez (Partner-White Plains, NY), Alan B. Friedberg (Senior Counsel-White Plains, NY) and Judy Selmeci (Partner-New York, NY) obtained dismissal of a complaint, alleging permanent vision loss, orbit deformity, chronic headaches, impairment in ADLS and other sequela, in the NYS Appellate Division, Second Department, reversing the Westchester Supreme Court’s denial of our motion for summary judgment in a medical malpractice case that was scheduled for trial. The plaintiff, a then 32-year-old woman with four children, sought treatment at a non-party emergency room on 3/10/16, reporting she fainted and hit her face, injuring her right eye and causing facial fracture. A CT scan raised suspicion for entrapment of the rectus muscle from the fracture, but the ER doctor documented extraocular movement intact (EMOI). Plaintiff was referred to our client, a plastic surgeon at our hospital’s plastic surgery clinic. 

1. On 3/15/16, our client determined the plaintiff had EOMI and noted no surgical intervention at that time. Plaintiff was instructed to return in one week. 
2. On 3/22/16, the plaintiff reported doing better with continued but improved limitation of movement on extreme right-eye lateral gaze. Plaintiff was permitted to return to work and instructed to avoid heavy lifting, and instructed to return in one week. 
3. Neither our client nor the clinic has records for the plaintiff after 3/22/16. 
4. On 4/20/16, plaintiff reported new symptoms to her internist, who referred her to an ophthalmologist. 
5. At the 6/8/16 ophthalmology visit, plaintiff was referred to an oculoplastic surgeon, who reviewed the 3/10/16 CT and opined the right medial rectus muscle appeared caught on right medial orbital wall fracture. 
6. On 9/2/16, the plaintiff underwent surgery, which documented a defect in abduction on forced duction testing. A titanium implant and microplate screws were placed. On follow-up on 10/20/16, plaintiff continued to have diplopia and right abduction deficit. 

Our team’s summary judgment motion was denied by Judge Alexandra Murphy, Westchester County Supreme Court, based on an alleged issue of fact raised in the affidavit of plaintiff’s plastic surgery expert, based on the 3/10/16 CT, our client should have known plaintiff would suffer muscle entrapment and that our client abandoned plaintiff. The Second Department, in reversing Judge Murphy and granting summary judgment on all claims, agreed with our argument that plaintiff’s expert’s opinions were conclusory, speculative and unsupported by competent evidence tending to establish proximate causation. 

Judy Selmeci (Partner-New York, NY) successfully defended in New York Supreme Court, Appellate Division the defense verdict obtained by White Plains partners Michael Grady and Lori Semlies. In the underlying matter, the plaintiff alleged that the hospital’s radiology technician violated hospital protocols while administering intravenous contrast. Mike and Lori argued at trial that although the employee administered contrast at a different rate than the hospital’s policy suggested, the technician abided by the guidelines of the American College of Radiology which reflect the standard of care; therefore there was no malpractice. Mike and Lori consulted with the Appellate team frequently during the contentious trial and built record that proved to be a solid foundation of research and arguments for the appeal. The Appellate Division held that the hospital’s policy was merely “some evidence of negligence” and the jury could find, despite violation of the policy, as it did that the defendants did not depart from the standard of care.