Opinion
2012-07448
11-12-2014
Rudolph DUVIDOVICH, etc., appellant, v. Liziamma GEORGE, etc., defendant, Helen Sogoloff, etc., et al., respondents.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellant. Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza and Kim B. Kirzner of counsel), for respondent Helen Sogoloff. Geisler, Henninger & Fitzmaurice LLP, Mineola, N.Y. (Tracy Abramson of counsel), for respondent New York Methodist Hospital.
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for appellant.
Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza and Kim B. Kirzner of counsel), for respondent Helen Sogoloff.
Geisler, Henninger & Fitzmaurice LLP, Mineola, N.Y. (Tracy Abramson of counsel), for respondent New York Methodist Hospital.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and COLLEEN D. DUFFY, JJ.
Opinion In an action, inter alia, to recover damages for medical malpractice, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), dated December 5, 2011, as granted that branch of the motion of the defendant Helen Sogoloff which was for summary judgment dismissing the complaint insofar as asserted against her, and that branch of the separate motion of the defendants Liziamma George and New York Methodist Hospital which was for summary judgment dismissing the complaint insofar as asserted against the defendant New York Methodist Hospital.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.
In order to establish a prima facie case of liability in a medical malpractice action, the plaintiff must show “(1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 ; see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161 ; Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203 ; Thompson v. Orner, 36 A.D.3d 791, 791–792, 828 N.Y.S.2d 509 ). Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Wexelbaum v. Jean, 80 A.D.3d at 757, 915 N.Y.S.2d 161 ; Roca v. Perel, 51 A.D.3d at 758, 859 N.Y.S.2d 203 ). Where such a showing is made, the burden shifts to the plaintiff to produce evidentiary proof in admissible form demonstrating the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). “General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment” (DiMitri v. Monsouri, 302 A.D.2d at 421, 754 N.Y.S.2d 674 ; see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; DeLaurentis v. Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d 774, 775, 985 N.Y.S.2d 709 ; Khosrova v. Westermann, 109 A.D.3d 965, 967, 971 N.Y.S.2d 565 ; Lifshitz v. Beth Israel Med. Ctr.-Kings Highway Div., 7 A.D.3d 759, 760, 776 N.Y.S.2d 907 ).
Here, in support of those branches of their respective motions which were for summary judgment dismissing the complaint insofar as asserted against each of them, the defendants Helen Sogoloff and New York Methodist Hospital (hereinafter the hospital) submitted expert affirmations that established, prima facie, that they did not depart from good and accepted standards of medical practice in their treatment of the plaintiff's decedent, and, in any event, that any alleged departure was not a proximate cause of the decedent's injuries or her eventual death. In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, the medical expert's affidavit submitted in opposition to both motions was conclusory, speculative, and without basis in the record, and, therefore, was insufficient to raise a triable issue of fact (see Lynn G. v. Hugo, 96 N.Y.2d 306, 310, 728 N.Y.S.2d 121, 752 N.E.2d 250 ; DeLaurentis v. Orange Regional Med. Ctr.-Horton Campus, 117 A.D.3d at 775, 985 N.Y.S.2d 709 ; Khosrova v. Westermann, 109 A.D.3d at 967, 971 N.Y.S.2d 565 ; Lifshitz v. Beth Israel Med. Ctr.-Kings Highway Div., 7 A.D.3d at 760, 776 N.Y.S.2d 907 ; DiMitri v. Monsouri, 302 A.D.2d at 421, 754 N.Y.S.2d 674 ).
Accordingly, the Supreme Court properly granted those branches of the separate motions which were for summary judgment dismissing the complaint insofar as asserted against Sogoloff and the hospital.