Opinion
Argued September 24, 1999
November 30, 1999
In an action, inter alia, to recover damages for personal injuries, etc., the defendant Sidney D. Harvey appeals from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered December 7, 1998, as, upon reargument of his prior cross motion for summary judgment which was granted by an order of the same court, entered July 27, 1998, denied the cross motion.
DuBois, Billig, Loughlin, Conaty Weisman, White Plains, N Y (Jacqueline Mandell of counsel), for appellant.
Raymond G. Kuntz, P.C., Bedford Village, N.Y. (Thomas Scapoli of counsel), for respondents.
WILLIAM C. THOMPSON, J.P., DANIEL W. JOY, LEO F. McGINITY, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the order is modified, on the law, by deleting the provision thereof which, upon reargument, denied the appellant's cross motion and substituting therefor a provision adhering to so much of the prior order as granted the appellant's cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, the complaint is dismissed insofar as asserted against the defendant Sidney D. Harvey, and the action against the remaining defendants is severed.
The general allegations of negligence set forth by the plaintiffs' expert were conclusory and unsupported by evidence, and thus insufficient to defeat the appellant's cross motion in which he made out a prima facie case for summary judgment ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Rosado v. Lutheran Med. Ctr., 202 A.D.2d 412; Guida v. Hsu, 187 A.D.2d 485). Further, the plaintiffs failed to establish the existence of a doctor/patient relationship so as to impose liability on the appellant ( cf., Heller v. Peekskill Community Hosp., 198 A.D.2d 265).
THOMPSON, J.P., JOY, McGINITY, and FEUERSTEIN, JJ., concur.
DECISION ORDER ON MOTION
Motion by the appellant to enlarge the time to file a reply brief on an appeal from an order of the Supreme Court, Westchester County, entered December 7, 1998, and cross application by the respondents to strike stated portions of the reply brief on the ground, inter alia, that it refers to matter dehors the record. By decision and order on motion dated June 15, 1999, the cross application was held in abeyance and was referred to the justices hearing the appeal for determination upon the argument or submission of the appeal.
Upon the papers filed in support of the cross application and the papers filed in opposition or relation thereto, and upon the argument of the appeal, it is
ORDERED that the cross application is granted to the extent that Pages 18 and 19 of the reply brief are deemed stricken and have not been considered in the determination of the appeal, and the cross application is otherwise denied.
THOMPSON, J.P., JOY, McGINITY, and FEUERSTEIN, JJ., concur.
DECISION ORDER ON MOTION
Motion by the appellant to stay the trial in the above-entitled action pending hearing and determination of an appeal from an order of the Supreme Court, Westchester County, entered December 7, 1998.
Upon the papers submitted in support of the motion and the papers submitted in opposition thereto, it is
ORDERED that the motion is denied as academic.
THOMPSON, J.P., JOY, McGINITY, and FEUERSTEIN, JJ., concur.