Opinion
2001-01021
Argued January 28, 2002.
February 25, 2002.
In an action to recover damages for medical malpractice, etc., the defendants New York Methodist Hospital s/h/a Methodist Hospital and Leonard J. Emma separately appeal from an order of the Supreme Court, Kings County (Levine, J.), dated December 20, 2000, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them.
Amabile Erman, P.C., Staten Island, N.Y. (Paul J. Danke, Jr., and Anthony Lenza of counsel), for appellant Leonard J. Emma.
Geisler Gabriele, LLP, Garden City, N.Y. (Linda Caputo-Friedmann of counsel), for appellant New York Methodist Hospital s/h/a Methodist Hospital.
Doniger Engstrand (Joseph V. Savino, New York, N.Y., of counsel), for respondents.
Before: SONDRA MILLER, J.P., DANIEL F. LUCIANO, ROBERT W. SCHMIDT, STEPHEN G. CRANE, JJ.
ORDERED that the order is affirmed, with one bill of costs.
It is well settled that "[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact * * * Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853; see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320). Further, a failure to address the specific factual allegations of medical malpractice set forth in the plaintiffs' bill of particulars precludes entitlement to judgment as a matter of law (see, Drago v. King, 283 A.D.2d 603). Here, the defendants did not meet their burden, since their medical expert did not refute, or even address, the specific factual allegations of negligence asserted in the plaintiffs' complaint and amended bill of particulars.
The remaining contentions of the appellant New York Methodist Hospital, s/h/a Methodist Hospital, are either unpreserved for appellate review or improperly raised for the first time in its reply brief (see, Morgan v. New York City Housing Authority, 255 A.D.2d 565).
S. MILLER, J.P., LUCIANO, SCHMIDT and CRANE, JJ., concur.