Opinion
Argued April 30, 1999
June 28, 1999
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated December 8, 1997, as granted that branch of the motion of the defendants Bruce Javors, Suzanne Roland, and Sandra Shaw, and the now-deceased defendant, Roger A. Hyman, which was for summary judgment dismissing the complaint insofar as asserted against Roger A. Hyman.
Vincent F. Nicolosi, Bayside, N.Y., for appellants.
Wilson, Elser, Moskowitz, Edelman Dicker (Mauro Goldberg, Great Neck, N.Y. [Kenneth Mauro and Katherine E. Herr] of counsel), for respondent.
SONDRA MILLER, J.P., DANIEL W. JOY, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the order is affirmed insofar as appealed from, with costs.
The now-deceased defendant, Dr. Roger A. Hyman, established his entitlement to judgment as a matter of law, thus shifting the burden to the plaintiffs to demonstrate the existence of a triable issue of fact ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 326-327). The plaintiffs failed to submit an affidavit from a medical expert to demonstrate that Dr. Hyman departed from accepted medical practice and that such departure was a proximate cause of the plaintiff Roberta Damen's injuries. Counsel's unsubstantiated assertions of malpractice were insufficient to raise a triable issue of fact ( see, Alvarez v. Prospect Hosp., supra; Fileccia v. Massapequa Gen. Hosp., 99 A.D.2d 796, affd 63 N.Y.2d 639).