Monday, August 26, 2013

Kathleen Rice and Her Cuomo-Silver Conflict of Interest

Question: What do people in NY State know that the Daily News does not?

Answer: Kathleen Rice will not investigate Sheldon Silver, and there will be a coverup

Betsy Combier

Critics question how deeply corruption panel co-chair Kathleen Rice would probe Sheldon Silver after campaign contributions

State government officials are questioning how aggressively Gov. Cuomo's corruption panel would investigate Assembly Speaker Sheldon Silver, after the law firm that employed Silver gave nearly $300,000 in campaign donations to co-chair and Nassau County District Attorney Kathleen Rice.


Kathleen Rice

ALBANY — A co-chairwoman of Gov. Cuomo’s commission probing state government corruption received nearly $300,000 in campaign donations from the law firm that employs Assembly Speaker Sheldon Silver.

Some critics question how aggressive the panel would be if asked to probe Silver — given the contributions to the co-chair, Nassau County District Attorney Kathleen Rice, from Weitz & Luxenberg, its partners and their spouses.

“Given these hefty contributions, it’s fair to ask if Kathleen will look the other way or will she really hold Shelly’s feet to the fire,” said a senior state government official. “Time will tell.”

Rice and her co-chairs — Onondaga County District Attorney William Fitzpatrick and former Assistant U.S. Attorney Milton Williams — must all sign off on any subpoenas the commission issues.

Silver, a Democrat, reported making between $350,000 and $450,000 last year as “of counsel” at Weitz & Luxenberg, one of the leading trial lawyer firms in the state.
Law firm Weitz & Luxenberg, its partners and their spouses have contributed nearly $300,000 to Rice's campaign.

Law firm Weitz & Luxenberg, its partners and their spouses have contributed nearly $300,000 to Rice's campaign.

The firm gave Rice $5,000 in 2006. Partners Perry Weitz and Arthur Luxenberg, along with their wives, donated another $292,896 to her DA and attorney general campaigns between 2009 and this year.

No one else on the 25-member corruption commission received contributions from Weitz & Luxenberg.

Rice hired Justin Weitz, Perry Weitz’s son, as an assistant district attorney in 2009. He no longer works for her.

Rice spokesman Eric Phillips said the Democrat district attorney has spent more than two decades as a prosecutor “immune to fear or favor.

Cuomo and Rice
“There’s no chance of that changing now,” Phillips said.


The current system, he said, requires politicians “who want to make a difference” to raise campaign money.

“The DA volunteered for this commission to help break down that unfortunate reality,” he said.

Bill Mahoney of the New York Public Interest Research Group noted that Rice is among the top 10 fund-raisers for every disclosure filing period, receiving money from a host of special interests.

Sheldon Silver

“It’s something to be mindful of,” Mahoney said. “Hopefully she will be able to rise above her ties to her donors and investigate the entire Legislature fairly.”

Aside from the Weitz & Luxenberg donations, Rice has received tens of thousands of dollars from unions and others with state business.


Among those who have given is Joseph Sitt, a partner at Thor Equities, one of five developers subpoenaed by the anti-corruption commission after the Daily News revealed the firms quietly received lucrative tax breaks in a housing bill passed in January.

Sitt gave Rice’s failed attorney general campaign $4,000 in 2010.

Rice has been a far bigger fund-raiser than fellow commission co-chair Fitzpatrick.

Campaign records dating back to 2006 show that he received regular donations from an upstate law firm that employs Assemblyman Will Barclay (R-Fulton) and Sen. Neil Breslin (D-Albany). But those donations totaled less than $8,000.

Williams, the third co-chair, received no donations, since he hasn’t held public office.

Sunday, August 25, 2013

Whistleblower Attorney Lynn Szymoniak Exposes NY City and State Mortgage-document Fraud

New York State was sold years ago to banks and real estate moguls who have the money and motive to not only pay for the election of people who do their bidding, but pay for them to decide on their favor once they get elected. Take Attorney General Eric Schneiderman, for example (and before him, Eliot Spitzer and his dad).

Betsy Combier

NY mortgage fraud may top $100M

  • Last Updated: 10:44 PM, August 24, 2013
  • Posted: 10:44 PM, August 24, 2013
New York City and state have suffered massive mortgage-document fraud, with damages potentially exceeding $100 million.
That’s the explosive allegation by whistleblower Lynn Szymoniak and her legal team, whose lawsuit against two-dozen major banks and mortgage servicers alleging violations of the False Claims Act has just been unsealed.
“Almost every mortgage-backed security issued from 2004 to 2007 bought by New York state and City is tainted by fraudulent mortgage documents,” Szymoniak, a Florida-based attorney and fraud expert, told The Post.
Now that the lawsuit has been unsealed, Szymoniak and her lawyers are gunning to bring big banks and mortgage servicers — including Chase Home Finance, Ally Financial, CitiMortgage, Wells Fargo Home Mortgage and Bank of America Mortgage Securities — to trial in US District Court in South Carolina.
The suit alleges widespread creation and use of fraudulent mortgage documents, which reduced the value of mortgage-backed securities New York City and state bought.
Without admitting wrongdoing, Wells Fargo, Ally, Bank of America, Chase and Citi settled part of Szymoniak’s suit for $95 million in 2012, as part of a $25 billion national mortgage settlement.
Szymoniak noted that in 2006 alone, privately issued mortgages were packaged and sold into 1,126 investment trusts, most of which had an average total loan balance of more than $1 billion.
In the coming weeks, Szymoniak and her lawyers will try to determine exactly which mortgage-backed securities were purchased by New York City and state.
The case is complex, and, while it’s tough to estimate at this point how much financial harm New York state and City have suffered, Szymoniak’s attorney Reuben Guttman said damages could run into the hundreds of millions of dollars.
“The [$95 million] settlement is the tip of the iceberg,” said Guttman.
New York Attorney General Eric Schneiderman, Wells Fargo, Citi and Chase declined to comment. A Bank of America spokesman said, “We believe the remaining claims are without merit and will seek dismissal.”
An Ally spokeswoman said the bank “did not participate in any of the securitizations which are the subject of the plaintiff’s complaint.”

Whistle-Blower Lynn Szymoniak Beats the Banks

Attorney Lynn Szymoniak had spent her career investigating insurance fraud when Deutsche Bank (DB) moved to foreclose on her Florida home in 2008. Almost four years later, she’s still fighting the foreclosure. Yet the fraud by numerous banks she uncovered after combing through mortgage documents has earned her $18 million.
Szymoniak, 63, is getting part of a $25 billion national settlement that state and federal officials reached in February with five banks, including Bank of America (BAC) and JPMorgan Chase (JPM), according to the Department of Justice. Deutsche Bank was not part of that settlement. “When they did this to her, they picked the wrong person at the wrong time in the wrong place,” says Richard Harpootlian, Szymoniak’s attorney. “They stuck their hand into the beehive.” John Gallagher, a spokesman for Deutsche Bank, declined to comment on Szymoniak’s foreclosure case.

The settlement with the five banks, which did not admit wrongdoing, resolves claims of abusive foreclosure practices and provides mortgage relief to borrowers. It pays $1.5 billion to those who lost their homes to foreclosure, and sets standards for how the banks service mortgages. It also provides $228 million to settle whistle-blower claims, according to papers filed in federal court in Washington. A group of six whistle-blowers will receive $46.5 million out of that amount, says Alisa Finelli, a spokeswoman for the Justice Department. Spokesmen for JPMorgan and Bank of America declined to comment on the whistle-blower cases resolved as part of the national foreclosure settlement.

Szymoniak stopped making mortgage payments on her Palm Beach Gardens (Fla.) home in 2008 after a battle with cancer wiped out her savings and she cut back on work to care for her sick mother, she says. In July of that year Deutsche Bank, as trustee for a mortgage securitization trust, sued to seize the house, which was once worth $1.3 million. Szymoniak says she was first alerted something might be wrong when Deutsche Bank said it acquired her mortgage note in October 2008, three months after suing her—meaning it might have begun proceedings without having the authority to foreclose.

Her suspicions aroused, “I began doing what I’ve done for years—go out and investigate,” she says. After examining her own and other documents in the Palm Beach County courthouse, she saw the same name appearing with different titles, and what she said were forged signatures. “It was pretty obvious to me that the paperwork was fraudulent,” she says. It took her “less than five days” of research to conclude that many lenders were using faulty documents as the basis for foreclosures.

Szymoniak approached law-enforcement officials with her suspicions that taxpayers may have been defrauded, she says, because banks submitted faulty documents to the U.S. Department of Housing and Urban Development seeking to collect on government-insured loans. Her discoveries also prompted her to hire Harpootlian, who had retained Szymoniak in the past as an expert witness in a lawsuit against insurer American International Group (AIG), to file her whistle-blower claims. While most whistle-blower cases are brought by company insiders who uncover wrongdoing within their own corporations or a competitor’s, a person doesn’t have to be an insider to file a false-claims case.

The whistle-blower claims resolved in the national settlement include a case filed in Atlanta in 2006 in which banks are accused of defrauding military veterans and the U.S. government. The banks violated rules under a Department of Veterans Affairs program for refinancing mortgage loans by charging improper fees to veterans, according to the complaint, which also says the banks hid those fees and obtained government guarantees on the loans.

The two whistle-blowers, Victor Bibby and Brian Donnelly, will split $11.7 million out of the $45 million JPMorgan Chase agreed to pay to settle the veterans case, says Brandon Peak, a lawyer working on the case. Claims against other banks in the case are pending. The settlement underscores the benefits provided to taxpayers from whistle-blowers, Peak says: “The taxpayers actually receive this money back that they never would have received absent these whistle-blowers.”

Szymoniak says she’s unsure what she’ll do with the whistle-blower money. Deutsche Bank is proceeding with its foreclosure action against her home in a Florida court, she says, and she’s contesting it. Even if she used part of her award to pay off her mortgage, she says, “I would own a house with no clear title, so I still couldn’t sell it.”

The bottom line: As part of a $25 billion settlement with five banks, a group of six whistle-blowers, including Lynn Szymoniak, will share $46.5 million.

Feeley is a reporter for Bloomberg News.
McLaughlin is a reporter for Bloomberg News.

Wednesday, August 21, 2013

Pfc. Bradley Manning is Sentenced To 35 Years in Prison

   Manning Sentenced to 35 Years and Dishonorably Discharged for Leaking Government Secrets
A military judge on Wednesday sentenced Pfc. Bradley Manning to 35 years in prison for providing more than 700,000 government files to WikiLeaks, a gigantic leak that lifted the veil on military and diplomatic activities around the world.
The judge, Army Col. Denise Lind, said that Private Manning was dishonorably discharged.
Colonel Lind could have sentenced Private Manning, 25, to up to 90 years. She found him guilty last month of most of the charges against him, including six counts of violating the Espionage Act, five counts of stealing government property and one count of violating the Computer Fraud and Abuse Act. He was acquitted of the most serious charge, “aiding the enemy,” a charge never before filed in a leak case.  

Manning Sentenced to 35 Years for Leaking Government Secrets

FORT MEADE, Md. — A military judge sentenced Pfc. Bradley Manning on Wednesday to 35 years in prison for providing more than 700,000 government files to WikiLeaks, a gigantic leak that lifted the veil on military and diplomatic activities around the world.
The judge, Army Col. Denise R. Lind, said that Private Manning was dishonorably discharged. She reduced him to the lowest rank of private, from his previous rank of private first class, and said he had to forfeit all pay.
Colonel Lind could have sentenced Private Manning, 25, to up to 90 years. She found him guilty last month of most of the charges against him, including six counts of violating the Espionage Act, five counts of stealing government property and one count of violating the Computer Fraud and Abuse Act. He was acquitted of the most serious charge, aiding the enemy, a charge never before filed in a leak case.
Private Manning’s disclosures to WikiLeaks included a video taken during an American helicopter attack in Baghdad in 2007 in which civilians were killed, including two journalists.
His sentence will automatically be sent to the Army Court of Criminal Appeals. Before the next phase can begin, the entire court-martial proceedings must be turned into an official transcript, which both the defense and prosecution, as well as the judge, must approve; that process is expected to take considerable time. Pretrial hearings started in 2012, and the trial itself began in early June.
During closing arguments in the sentencing phase, prosecutors urged Colonel Lind to sentence Private Manning to at least 60 years in prison, saying he had betrayed the government. They also said they hoped that the severity of the punishment would discourage future leaks of entire electronic archives.
The prosecution also recommended that Private Manning be reduced in rank, given a dishonorable discharge, forced to forfeit his pay and fined $100,000 to repay some of what the government said had been spent on efforts to mitigate damage, including reviewing documents and identifying individuals who officials said were put at risk by the disclosures.
The materials that Private Manning gave to WikiLeaks include documents exposing the abuse of detainees by Iraqi officers under the watch of American forces and reports showing that civilian deaths during the Iraq war were most likely significantly higher than official estimates.
Private Manning’s defense lawyer, David Coombs, argued that his client had leaked the documents because he believed the public had a right to know about aspects of the Iraq war that he found troubling.
But Mr. Coombs, seeking leniency, also argued that his client was na├»ve and confused at the time by stresses including going through a crisis over his gender identity while on a military deployment to a combat zone. He also elicited testimony showing that the military had played down serious and recurring signs that his client’s mental health was deteriorating, noting that had the military responded differently, his client might not have had access to classified information.
Last week, Private Manning apologized for his actions, saying they had “hurt people” and “hurt the United States.” He said that while he was going through a “considerable difficulty in my life” at the time, “these issues are not an excuse for my actions. I understood what I was doing and the decisions I made.”
Held up by his supporters as a hero, Private Manning has attracted international support, inspiring demonstrations outside the Army base here where his court-martial was held and as far away as Australia and South Korea. The Bradley Manning Support Network, a grass-roots group, says it has raised $1.4 million from more than 22,000 contributors to cover his legal fees.
Private Manning was arrested in May 2010 after he told a former computer hacker, Adrian Lamo, that he had given hundreds of thousands of secret government files to WikiLeaks. Mr. Lamo turned him in to military authorities.
A little more than three years will be deducted from Private Manning’s sentence for the time he has already spent in custody. He also will be credited with 112 days for the treatment he endured at a military jail that the judge ruled was unlawful.
He is one of seven people to be charged in connection with the leaks of classified information to the news media under the Obama administration, the latest being Edward J. Snowden, the former government contractor who disclosed secret documents from the National Security Agency to The Guardian and The Washington Post. There were only three such cases in all previous administrations combined.




Friday, August 16, 2013

Judge Maureen Sogluizzo: Bias Against Mothers


For starters- I know multiple moms dealing with this woman- some of whom will not come forward with specific details of their cases for fear of retaliation.  I also have transcripts from other moms who have appeared in her Nazi kingdom.  I will break down a couple cases now- all these moms have a mutual factor- they are pro se against highly connected firms- (This county is long known to be corrupt- and there is good reason to believe that)

We have a mom who lost custody of her child due to one unjust decision of a court-  Sogluizzo then used only portions of reports to uphold, and support the taking of a child from a mom. The mom is a good, stable, loving mom.  There is no child abuse, and no neglect.  Mom is not afforded joint custody- or liberal parenting time.  Why is that important to know?  Because when a father does not have custody- he is given liberal parenting time- and is always heading to the goal of joint custody.  The moms are the opposite- when a mom does not have custody- she has a weekend a month.  Mom will never regain joint custody once dad has it.  Why?  Because- this is a patriarchal society.   Father's rights special interest groups have taken over the American court.  They own these judges.  (By the way- I refuse to use capital letters for a judge-- many are dishonorable and do not deserve it)

OK- so mom loses custody- has limited parenting time (usually a mom will have to beg to get off supervised visits- and she only gets supervised to begin with because she does not "like" the father)  In another case before the monster- the judge actually hides child abuse so the dad will not lose his parenting time- sick woman!

Now- the father begins to file motion after motion.  In a clear attempt to break the mother (who is pro se) he drags mom into court over and over.  Mom is pro se because they ran her penniless- (another common factor)  Sogluizzo changes her own orders- at one time saying a relocation motion was denied because it was not in child's best interest- but she gives hints to the father about how to win the motion next time.  The father returns with the motion- and is granted a motion to relocate out of state.  Sogluizzo holds jurisdiction of the case however, so mom can still be tormented by her orders.   Sogluizzo hates when people file appeals against her Nazi orders- so she punished mom by ordering her to pay dad's legal fees.  Now- dad has a great - crooked lawyer.  Mom has no lawyer- but now she has to pay the dad's lawyer.  Mom is now forced to move out of state too if she wishes to see her child at all.  Mom will have to leave her entire family- and is not even being given additional time when and if she relocates.  Her parenting time will not change- and is limited.  A child has an absolute right to her mother.  Sogluizzo actually expected mom to continue to fly back and forth to see her child- the child was forced to leave her NJ family- leave her mom- her school- her friends- and all for what?  So dad can torture mom- and have the child raised by babysitters!  Why should a child be sent to be raised by sitters and stepmonsters when they have a fit, caring mom?  Why?

Sogluizzo expects to hold this case- even though she allowed the child to relocate out of state.  She expects to enforce mom to pay legal fees she has no ability to pay.  The bottom line- Sogluizzo is out of her mind- she needs to get off this bench and go home to be bitter over the fact she is not a mother.  She also needs to get a new haircut- she is a joke-  Report this monster to Judge Peter T Bariso in Hudson County- or the Administrative Judge- Judge Glen Grant- enough of this monster nazi - People who ignore her conduct are just as guilty as her- the day has come- go home Sogluizzo !

More and more moms are coming forward about her- if you sit in her court on a given day- you will see how many "fathers" have custody- why?  These are regular moms- moms who were primary caregivers- and her attitude toward moms who gave up careers to raise kids is disgusting.  She clearly is carrying some personal vendetta with her-

Tuesday, August 13, 2013

Weinstein v Lanoix: Proximate Cause and Summary Judgment

Weinstein v Lanoix
2013 NY Slip Op 51316(U)
Decided on August 1, 2013
Supreme Court, New York County
Lobis, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 1, 2013 
Supreme Court, New York County

Marilyn C. Weinstein, as Administratrix of the Estate of SHERIE BETH WEINSTEIN, deceased, Plaintiff, 




Scaffidi & Associates for plaintiff. 

Costello, Shea & Gaffney for the moving defendants. 

Joan B. Lobis, J.

In motion sequence number 1, defendants Richard Lanoix, M.D., and St. Luke's -Roosevelt Hospital Center (SLRH) move for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. Plaintiff Marilyn C. Weinstein, as Administratrix of the Estate of Sherie Beth Weinstein, deceased, opposes the motion. For the following reasons, the motion is denied. 
This medical malpractice and wrongful death case involves the treatment rendered to decedent Sherie Weinstein by defendants. Plaintiff alleges that defendants failed to diagnose and treat Sherie Weinstein's prolonged QT interval,[FN1] which led to her death on July 23, 2004, at age [*2]27.On December 16, 2003, Sherie Weinstein presented to the emergency room at SLRH. The Ambulance Call Report notes that decedent was found at work on the floor screaming and crying. A co-worker reported that Ms. Weinstein asked for a glass of water before falling to the ground. The patient could follow commands but was unable to speak. Upon arrival at SLRH, the patient was seen by a triage nurse. The nurse tested decedent's urine sample and blood glucose levels, to rule out low blood sugar and pregnancy as possible causes. An Electrocardiogram (EKG) test was performed, which documented the patient's QT interval to be 494 milliseconds (ms) and her QTc interval [FN2] to be 540 ms. The EKG report was described as "Abnormal" and her QT as "Prolonged."
Richard Lanoix, M.D., evaluated the patient and reviewed her test results. During his deposition, Dr. Lanoix admitted that he did not have any independent recollection about his evaluation of Ms. Weinstein, but ascertained from the medical records that he had ordered a neurological examination and additional laboratory work, the results of which were normal. The decedent's urinary analysis, however, indicated that she had a urinary tract infection (UTI). Dr. Lanoix evaluated the patient's potassium, magnesium, and calcium levels, all of which he also determined to be normal. Dr. Lanoix testified that he had ordered a complete blood count to rule out acute Prolonged QT syndrome. When the blood work tests came back within normal range, Dr. Lanoix concluded that the cause of the patient's episode was not Prolonged QT Syndrome. Dr. Lanoix testified that the decedent exhibited no supporting symptomalogy for Prolonged QT Syndrome, since her potassium, magnesium, and calcium levels were normal and since she was not suffering from any congenital conditions or diseases.
The patient's medical history contained prior episodes of syncope. Approximately eleven months earlier, Ms. Weinstein was admitted to the Emergency Department at St. Vincent's Medical Center (SVMC) after falling to the ground at a nail salon. She was seen by a neurologist four days later. At the conclusion of his evaluation on December 16, 2003, Dr. Lanoix directed Ms. Weinstein to follow-up with the neurologist with whom she had previously treated. Dr. Lanoix testified that it is his custom and practice to provide the patient with a copy of the EKG report as well as instruct the patient to follow-up with a cardiologist, but Dr. Lanoix did not recall whether he did so during Ms. Weinstein's visit. While the decedent's discharge sheet indicates a referral to a neurologist, it makes no mention of a referral to a cardiologist. Furthermore, Dr. Lanoix diagnosed the patient as having a "Seizure Disorder" and UTI, and he testified that he did not include Prolonged QT as a diagnosis because he believed it was an incidental finding unrelated to the patient's presentation. The patient was discharged on that same day and was prescribed Ciprofloxacin.
On December 19, 2003, the decedent saw co-defendant Josh Torgovnick, M.D., the neurologist with whom she had previously treated. At this time, Dr. Torgovnick referred the [*3]decedent to Ali Fard, M.D., a cardiologist. The patient had five visits with Dr. Fard from December 29, 2003, through March 4, 2004. Dr. Fard undertook a battery of tests, including a cardiac stress test and a holter monitoring.[FN3] In the course of Dr. Fard's treatment, he referred the patient to Nidal Isber, M.D., an electro-physiologist, who conducted a tilt table test to rule out neuro-cardiogenic syncope.
On July 14, 2004, after suffering a catatonic episode the patient presented to the Emergency Department at SVMC. She underwent a psychiatric consultation and was released with a provisional diagnosis of migraine and conversion reaction. On July 23, 2004, while working at a performance arts camp in upstate New York, the patient was found positioned over a bed and minimally responsive. She was unable to be resuscitated and died. The autopsy report indicates the immediate cause of her death to be "spontaneous ventricular fibrillation" due to an "undetermined cause."
Plaintiff commenced this case on February 3, 2006, alleging in pertinent part that defendants failed to diagnose and treat Ms. Weinstein's Prolonged QT Syndrome; misdiagnosed her condition as psychological in nature; misdiagnosed her condition as a seizure, urinary tract infection, and syncope; and misinterpreted her medical reports and examinations. Plaintiff additionally alleges that SLRH failed to monitor its staff and failed to order repeat studies or make the necessary referrals.
Dr. Lanoix and SLRH seek summary judgment on the grounds that no triable issues of fact exist that they comported with the standard of care in treating Sherie Weinstein. Defendants also allege that the patient's subsequent treaters, who exercised their independent medical judgment, constitute superseding or intervening causes that sever the causal nexus between Dr. Lanoix, SLRH, and the patient's injuries.
Defendants submit the expert affirmation of Thomas Kwiatkowski, M.D., a physician licensed to practice in New York and board certified in Emergency Medicine. After reviewing all the relevant medical records and pretrial deposition transcripts, Dr. Kwiatkowski opines to a reasonable degree of medical certainty that the care rendered by Dr. Lanoix and the staff at SLRH on December 16, 2003, was appropriate and did not proximately cause the patient's death. The expert outlines the treatment rendered by defendants and states that the triage nurse appropriately undertook an initial assessment and noted that the patient's vital signs were normal. Dr. Kwiatkowski also opines that, after reviewing the patient's history and the triage nurse's assessment, Dr. Lanoix appropriately assessed the patient and ordered the necessary tests. The expert adds that Dr. Lanoix properly regarded the patient's case to be a classic anxiety disorder situation, and that Dr. Lanoix correctly evaluated the patient's EKG levels after the patient's neurological and physical exams results were normal. The expert sets forth that Dr. Lanoix [*4]interpreted the patient's EKG as having normal sinus rhythm and a Prolonged QT, but that Dr. Lanoix was also accurate in concluding that the patient was not in acute distress and, based upon the blood work and the lack of supporting symptomalogy, was not suffering from Prolonged QT Syndrome. Dr. Kwiatkowski states that it was appropriate for Dr. Lanoix to have believed that Prolonged QT syndrome was not the cause of the patient's episode, since the patient was "otherwise stable [and] did not require further action or request for consult by Dr. Lanoix [or SLRH.]" The expert states that, during discharge, Dr. Lanoix properly instructed the patient to follow up with her treating neurologist and to consult a cardiologist. Dr. Kwiatkowski further adds that the patient's subsequent treaters performed multiple tests and evaluations and found her QT wave to be normal, which further supports Dr. Lanoix's and SLRH's proper care, and which constitute superseding events.
In opposition, the plaintiff argues that summary judgment should be denied as there exist questions of fact. The plaintiff submits the expert affirmation of a physician, who is licensed to practice in New York and board certified in Internal Medicine and Critical Care Medicine. The expert states that the expert is familiar with the standards of medicine and emergency medicine as well as the medical literature during the time period involved in this case. In relevant part, the expert believes that the patient's diagnosis on December 16, 2003, should have been "Prolonged QT Syndrome," due to her history, which included three prior similar episodes, her gender, her age, her Prolonged QT interval of 494 and Prolonged QTc interval of 540. The expert states that Dr. Lanoix departed from accepted medical practice by misdiagnosing the patient as having experienced a seizure. The expert avers that patients who have Prolonged QT will not always exhibit the syndrome on an EKG, and the QT interval may revert to normal range for periods of time. As such, the expert believes that it was imperative for Dr. Lanoix and the SLRH staff to document the finding of Prolonged QT and include it in the diagnosis entered for the patient. Additionally, since SLRH was equipped with holter monitoring, electrophysiciologic testing, and cardiologists, the expert contends that Dr. Lanoix should have ordered an evaluation by a cardiologist, who would have been able to put in an automatic defibrillator to treat the patient's Prolonged QT syndrome. The expert suggests that the defendants' departures proximately caused the patient's injuries, notwithstanding the involvement of her subsequent treaters or their evaluation results. The expert states that because there was no Prolonged QT diagnosis on the decedent's discharge sheet and because she was not provided a copy of her EKG report to present to her subsequent treaters, the subsequent treaters were deprived of the pertinent prior EKG that showed Prolonged QT. Thus, in the expert's view, the patient was deprived of a better chance of diagnosis and cure.
In reply, Dr. Lanoix and SLRH reiterate their argument that decedent's subsequent treaters acted independently and that their treatments constitute superseding and intervening events, which sever the causal nexus between Dr. Lanoix and SLRH. Defendants also argue that plaintiff's expert's opinion is speculative. 

In considering a motion for summary judgment, this Court reviews the record in the light most favorable to the non-moving party. E.g., Dallas-Stephenson v. Waisman, 39 AD3d 303, [*5]308 (1st Dep't 2007). A movant must support the motion by affidavit, a copy of the pleadings, and other available proof, including depositions and admissions. C.P.L.R. Rule 3212(b). The affidavit must recite all material facts and show, where a defendant is the movant, that the cause of action has no merit. Id. This Court may grant the motion if, upon all the papers and proof submitted, it is established that the Court is warranted as a matter of law in directing judgment. Id. It must be denied where facts are shown "sufficient to require a trial of any issue of fact." Id.
In a medical malpractice case, to establish entitlement to summary judgment, a physician must demonstrate that he did not depart from accepted standards of practice or that, even if he did, he did not proximately cause injury to the patient. Roques v. Noble, 73 AD3d 204, 206 (1st Dep't 2010). In claiming treatment did not depart from accepted standards, the movant must provide an expert opinion that is detailed, specific and factual in nature.E.g., Joyner-Pack v. Sykes, 54 AD3d 727, 729 (2d Dep't 2008). Expert opinion must be based on the facts in the record or those personally known to the expert. Roques, 73 AD3d at 206. The expert cannot make conclusions by assuming material facts not supported by record evidence. Id. Defense expert opinion should specify "in what way" a patient's treatment was proper and "elucidate the standard of care." Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 404 (1st Dep't 2010). A defendant's expert opinion must "explain what defendant did and why.'" Id. (quoting Wasserman v. Carella, 307 AD2d 225, 226 (1st Dep't 2003)). Conclusory medical affirmations or expert opinions that fail to address a plaintiff's essential factual allegations are insufficient to establish prima facie entitlement to summary judgment. 73 AD3d at 206. Once a defendant establishes a prima facie case, a plaintiff must then rebut that showing by submitting an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure proximately caused the alleged injuries. Id. at 207.
After considering the affirmations of defendant's counsel and Dr. Kwiatkowski, as well as the exhibits submitted, this Court concludes that defendants have made out a prima facie case that the treatment rendered to Sherie Weinstein on December 16, 2003, did not depart from the standard of care. In sufficient detail, the papers recite that the treatment given was appropriate in light of her presenting symptoms and the test results obtained. Dr. Kwiatkowski opines that although the EKG did report an abnormal Prolonged QT interval, that finding in an otherwise stable patient did not require any further action by Dr. Lanoix or by SLRH's staff. He concludes that the instructions requiring the patient to follow up with her prior treating neurologist was proper. Defendants further argue that the patient's visit to her neurologist three days after her discharge from SLRH, the neurologist's referral to a cardiologist who saw her numerous times, and the electro-physiologist's tests on her are superseding and intervening acts that sever any causal nexus between that treatment at SLRH in December 2003 and Ms. Weinstein's untimely death in July 2004. Because of the subsequent treatments, movants argue that as a matter of law their actions did not proximately cause injury to Ms. Weinstein.
Plaintiff's opposition disputes the opinion that the treatment given to Ms. Weinstein was within the standard of care. The expert disagrees with the defendants' assessment that the QT wave abnormality was benign. The medical expert's affirmation sets forth a number of treatment [*6]options that the expert asserts should have been pursued by Dr. Lanoix and SLRH's staff, including a referral to a cardiologist before discharging the patient and the administration of further testing. The failure to diagnose her with a Prolonged QT Syndrome/Long QT Syndrome was a substantial factor in her death. The expert opines that the misintepretation of the importance of the abnormal EKG report and the misdiagnosis deprived subsequent treaters of necessary information that prevented Sherie Weinstein from getting proper care.
The law is well settled that when competing experts present adequately supported but differing opinions on the propriety of the medical care, summary judgment is not proper. Such is the case here. See Rojas v. Palese, 94 AD3d 557 (1st Dep't 2012). But, the analysis must be taken further. Because of the patient's subsequent treatment by a neurologist, a cardiologist, and an electro-physiologist, all of whom did not diagnose Ms. Weinstein as suffering from a QT Wave disorder, movants argue that any causal connection between their actions and Ms. Weinstein's death has been severed. As a matter of law, they argue, no proximate cause can be established, and they must be granted summary judgment. Derdiarian v. Felix Contr. Corp., 51 NY2d 308 (1980). The issue of proximate cause is usually a question of fact for the jury unless the acts of the intervening party are independent or so far removed that they "do not flow from the original negligence." 315. While this case presents facts that may persuade a jury to make such a finding, it has not been established that there are no genuine issues of disputed facts regarding proximate cause and that defendants are entitled to summary judgment on that issue as a matter of law. If a jury finds malpractice by Dr. Lanoix and SLRH, it is in the jury's province to consider proximate cause.Accordingly, it is
ORDERED that the motion is denied; and it is further
ORDERED that the parties shall appear for a pretrial conference on Tuesday, August 27, 2013, at 9:30 a.m. 

Dated:, 2013ENTER:


Footnote 1: Plaintiff's expert explains that contractions of the heart are controlled by electrical impulses. After each heart beat, the heart's electrical system recharges itself in preparation for the next heartbeat, in a process known as repolarization. When the heart muscle takes longer than normal to recharge between beats, the interval between the beginning of the Q wave and the end of the T wave, as measured on an EKG, it is considered "prolonged" or "long." Prolonged QT interval/Long QT interval can be either induced or congenital and can lead to episodes of syncope (fainting), near syncope, seizures, or sudden cardiac death from arrhythmia or dysrhythmia. 

Footnote 2: Dr. Lanoix explains that a QTc interval takes into account the patient's heart rate. 

Footnote 3: A holter monitor is a portable device for continuous monitoring of various electrical activity of the cardiovascular system, which is worn for hours or days at a time. While the defendants refer to this as a "halter" monitor, the Court believes that both sides are referencing similar devices.