Opinion
2012-05-23
Neil BEZERMAN, etc., appellant, v. Sam BAILINE, etc., et al., respondents.
Argyropoulos & Bender, Astoria, N.Y. (Michael S. Bender of counsel), for appellant. Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Adonaid C. Medina, and Robert F. Elliott of counsel), for respondents.
Argyropoulos & Bender, Astoria, N.Y. (Michael S. Bender of counsel), for appellant. Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Adonaid C. Medina, and Robert F. Elliott of counsel), for respondents.
MARK C. DILLON, J.P., JOHN M. LEVENTHAL, L. PRISCILLA HALL, and LEONARD B. AUSTIN, JJ.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated December 15, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
On a motion for summary judgment dismissing the complaint in a medical malpractice action, a defendant must make a prima facie showing that there was no departure from good and accepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby ( see Salvia v. St. Catherine of Sienna Med. Ctr., 84 A.D.3d 1053, 923 N.Y.S.2d 856;Ahmed v. New York City Health & Hosps. Corp., 84 A.D.3d 709, 710, 922 N.Y.S.2d 202;Stukas v. Streiter, 83 A.D.3d 18, 24–26, 918 N.Y.S.2d 176). Once a defendant physician has made such a showing, the burden shifts to the plaintiff to “submit evidentiary facts or materials to rebut the prima facie showing by the defendant ... so as to demonstrate the existence of a triable issue of fact” ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;see Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment ( see Salvia v. St. Catherine of Sienna Med. Ctr., 84 A.D.3d at 1054, 923 N.Y.S.2d 856;Ahmed v. New York City Health & Hosps. Corp., 84 A.D.3d at 711, 922 N.Y.S.2d 202).
Here, the defendants demonstrated their prima facie entitlement to judgment as a matter of law by submitting evidence establishing that there was no departure from good and accepted practice by the defendants and that, in any event, any departure was not a proximate cause of the alleged injuries ( see Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176;Breland v. Jamaica Hosp. Med. Ctr., 49 A.D.3d 789, 854 N.Y.S.2d 209;DiMitri v. Monsouri, 302 A.D.2d 420, 754 N.Y.S.2d 674). In opposition to the defendants' prima facie showing, the plaintiff's submissions, including the affidavit of the plaintiff's expert, failed to raise a triable issue of fact as to whether any alleged departure was the proximate cause of the alleged injuries ( see Orsi v. Haralabatos, 89 A.D.3d 997, 934 N.Y.S.2d 195,lv. granted18 N.Y.3d 809, 2012 WL 996903;Graziano v. Cooling, 79 A.D.3d 803, 913 N.Y.S.2d 302;Wilkins v. Khoury, 72 A.D.3d 1067, 900 N.Y.S.2d 347).
Moreover, in opposition to the defendants' prima facie showing of entitlement to judgment as a matter of law dismissing the cause of action sounding in lack of informed consent, the plaintiff failed to raise a triable issue of fact. Thus, the defendants also were entitled to summary judgment dismissing that cause of action ( see Graziano v. Cooling, 79 A.D.3d 803, 913 N.Y.S.2d 302;Wilkins v. Khoury, 72 A.D.3d 1067, 900 N.Y.S.2d 347;Thompson v. Orner, 36 A.D.3d 791, 828 N.Y.S.2d 509;Viola v. Blanco, 1 A.D.3d 506, 767 N.Y.S.2d 248).
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.