Opinion
2012-01-17
Herbert ARCHER, respondent, v. Farhad HAERI, etc., et al., appellants(and a third-party action).
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Ralph Catalano and Karen Corbett of counsel), for appellants. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Susan M. Jaffe and Stephen C. Glasser of counsel), for respondent.
Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Ralph Catalano and Karen Corbett of counsel), for appellants. Sullivan Papain Block McGrath & Cannavo, P.C., New York, N.Y. (Susan M. Jaffe and Stephen C. Glasser of counsel), for respondent.
In an action to recover damages for professional malpractice, the defendants appeal from an order of the Supreme Court, Suffolk County (Cohen, J.), entered October 1, 2010, which denied their motion for summary judgment dismissing the complaint and granted the plaintiff's cross motion for leave to serve an amended bill of particulars.
ORDERED that the order is affirmed, with costs.
Contrary to the defendants' contention, the Supreme Court properly denied their motion for summary judgment dismissing the complaint. In order to establish liability for professional malpractice, a plaintiff must prove that the defendants deviated or departed from accepted community standards of practice and that such departure was a proximate cause of the plaintiff's injuries ( see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176; Heller v. Weinberg, 77 A.D.3d 622, 909 N.Y.S.2d 477). On their motion for summary judgment, the defendants had the burden of establishing the absence of any departure from good and accepted standards of physical therapy practice or that the plaintiff was not injured thereby ( see Shank v. Mehling, 84 A.D.3d 776, 777, 922 N.Y.S.2d 495; Heller v. Weinberg, 77 A.D.3d at 622–623, 909 N.Y.S.2d 477). In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendants' prima facie showing, so as to demonstrate the existence of a triable issue of fact ( see Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176).
Here, the defendants failed to meet their initial burden of demonstrating their prima facie entitlement to judgment as a matter of law. The affidavit of their expert, submitted in support of their motion, was insufficient to demonstrate that they did not depart from good and accepted standards of physical therapy practice or that the plaintiff was not injured thereby ( see Kuri v. Bhattacharya, 44 A.D.3d 718, 842 N.Y.S.2d 734; Allen v. Blum, 212 A.D.2d 562, 623 N.Y.S.2d 133). Therefore, the defendants' motion for summary judgment was properly denied, regardless of the sufficiency of the plaintiff's opposition papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).
Contrary to the defendants' contention, the Supreme Court properly granted the plaintiff's cross motion for leave to serve an amended bill of particulars, since the proposed amendments did not result in prejudice or surprise to the defendants ( see Adams v. Jamaica Hosp., 258 A.D.2d 604, 605, 685 N.Y.S.2d 752; Scheuerman v Health & Hosps. Corp. of City of N.Y., 243 A.D.2d 553, 554, 663 N.Y.S.2d 123; Fick v. LaGuardia Med. Group, 208 A.D.2d 800, 801, 618 N.Y.S.2d 72).