Opinion
Argued October 12, 1999
November 15, 1999
Drake, Sommers, Loeb, Tarshis Catania, P.C. (Shaub, Ahmuty, Citrin Spratt, LLP, Lake Success, N.Y. [Steven J. Ahmuty, Jr.] of counsel), for appellant Jai K. Jalaj.
James A. Steinberg, Poughkeepsie, N.Y. (John T. Melella and Jonathan E. Symer of counsel), for appellant Saint Francis Hospital.
Kelner Kelner, New York, N.Y. (Gail S. Kelner and Monica Risi Merrill of counsel), for plaintiff-respondent.
Feldman, Kleidman Coffey, LLP, Fishkill, N.Y. (Denise M. Fitzpatrick and Paul S. Kleidman of counsel), for defendants-respondents.
FRED T. SANTUCCI, J.P., WILLIAM C. THOMPSON, THOMAS R. SULLIVAN, WILLIAM D. FRIEDMANN, JJ.
DECISION ORDER
In an action, inter alia, to recover damages for wrongful death based on medical malpractice, the defendant Jai K. Jalaj appeals, as limited by his brief, from stated portions of an order of the Supreme Court, Orange County (Slobod, J.), dated October 8, 1998, which, inter alia, denied that branch of his motion which was for summary judgment dismissing the complaint insofar as asserted against him, and the defendant Saint Francis Hospital separately appeals, as limited by its brief, from so much of the same order as denied that branch of its motion which was for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is modified by deleting therefrom the provisions denying those branches of the motions of the appellants which were for summary judgment dismissing the complaint insofar as asserted against them, and substituting therefor provisions granting those branches of the motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff-respondent.
The Supreme Court erred in denying those branches of the motions of the appellants which were for summary judgment dismissing the complaint insofar as asserted against them (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320 ; Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358 ; Toledo v. Ordway, 208 A.D.2d 518 ). The appellants made a prima facie showing that they had not departed from accepted standards of medical practice in their treatment of the plaintiff's decedent (see, Kramer v. Rosenthal, 224 A.D.2d 392 ). The allegations of the plaintiff's expert were insufficient to meet the plaintiff's burden of showing a triable issue of fact (see, Kaplan v. Hamilton Med. Assocs., P.C., 262 A.D.2d 609 [2d Dept., June 28, 1999]; Spaeth v. Goldberg, 248 A.D.2d 704 ).
In light of our determination, we do not reach the remaining contentions of the appellant Jai K. Jalaj.
SANTUCCI, J.P., THOMPSON, SULLIVAN, and FRIEDMANN, JJ., concur.