Opinion
898 CA 20-00310
03-26-2021
Anthony P. CAMUGLIA, Plaintiff-Appellant, v. Timothy Edward PAGE, M.D., et al., Defendants, John Richard Restivo, M.D., Robert Meier, M.D., and Radiology Associates of New Hartford, LLP, Defendants-Respondents.
MICHAEL J. LAUCELLO, CLINTON, FOR PLAINTIFF-APPELLANT. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE ( ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
MICHAEL J. LAUCELLO, CLINTON, FOR PLAINTIFF-APPELLANT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE ( ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, TROUTMAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this medical malpractice action, plaintiff appeals from an order granting the motion of defendants-respondents (defendants) for summary judgment dismissing the complaint against them. We reject plaintiff's contention that Supreme Court erred in granting the motion, and therefore we affirm.
"It is well settled that a defendant moving for summary judgment in a medical malpractice action has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Bubar v. Brodman , 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019] [internal quotation marks omitted]; see Bristol v. Bunn , 189 A.D.3d 2114, 2116, 138 N.Y.S.3d 774 [4th Dept. 2020] ). Here, defendants met their initial burden on the motion by establishing the absence of a deviation from the accepted standard of care ( see Bristol , 189 A.D.3d at 2116, 138 N.Y.S.3d 774 ; Bubar , 177 A.D.3d at 1360, 111 N.Y.S.3d 483 ). Therefore, the burden shifted to plaintiff to raise an issue of fact by submitting an expert's affidavit establishing such a deviation ( see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Bubar , 177 A.D.3d at 1359, 111 N.Y.S.3d 483 ). Contrary to plaintiff's contention, he failed to meet his burden. It is well settled that "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician's summary judgment motion" ( Alvarez , 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; see Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ). Here, plaintiff's expert failed to quantify or describe in any way the features of the condition that defendants allegedly failed to observe, and thus the expert's affidavit is insufficient to raise a triable issue of fact whether defendants deviated from good and accepted medical practice ( see Rivers v. Birnbaum , 102 A.D.3d 26, 44, 953 N.Y.S.2d 232 [2d Dept. 2012] ; see also Campbell v. Bell-Thomson , 189 A.D.3d 2149, 2150-2151, 138 N.Y.S.3d 784 [4th Dept. 2020] ; Donnelly v. Parikh , 150 A.D.3d 820, 824, 55 N.Y.S.3d 274 [2d Dept. 2017] ).