Opinion
2015-05373. Index No. 52228/12.
06-28-2017
Benito GIACINTO, as administrator of the estate of Lucia Giacinto, and Benito Giacinto, individually, appellant, v. George SHAPIRO, etc., et al., respondents, et al., defendants.
Duane M. Fiedler (Alexander J. Wulwick, New York, NY, of counsel), for appellant. Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, NY (Stephanie Campbell and Thomas Witting of counsel), for respondent George Shapiro. Gordon & Silber, P.C., New York, NY (David H. Larkin and Andrew B. Kaufman of counsel), for respondents Jeffrey Shapiro and Sadia Saboor. Vouté Lohrfink Magro & McAndrew, LLP, White Plains, NY (John R. Braunstein of counsel), for respondent Jonas A. Liebowitz. Pilkington & Leggett, P.C., White Plains, NY (Michael N. Romano of counsel), for respondent Michael Morelli.
Duane M. Fiedler (Alexander J. Wulwick, New York, NY, of counsel), for appellant.
Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York, NY (Stephanie Campbell and Thomas Witting of counsel), for respondent George Shapiro.
Gordon & Silber, P.C., New York, NY (David H. Larkin and Andrew B. Kaufman of counsel), for respondents Jeffrey Shapiro and Sadia Saboor.
Vouté Lohrfink Magro & McAndrew, LLP, White Plains, NY (John R. Braunstein of counsel), for respondent Jonas A. Liebowitz.
Pilkington & Leggett, P.C., White Plains, NY (Michael N. Romano of counsel), for respondent Michael Morelli.
CHERYL E. CHAMBERS, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
In an action to recover damages for medical malpractice, etc., the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Jamieson, J.), dated January 6, 2014, as granted the separate motions of the defendant George Shapiro, the defendants Jeffrey Shapiro and Sadia Saboor, the defendant Jonas A. Leibowitz, and the defendant Michael Morelli for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.
" ‘In an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the plaintiff's injuries' " ( Guctas v. Pessolano, 132 A.D.3d 632, 633, 17 N.Y.S.3d 749, quoting Matos v. Khan, 119 A.D.3d 909, 910, 991 N.Y.S.2d 83 ; see Poter v. Adams, 104 A.D.3d 925, 926, 961 N.Y.S.2d 556 ; Salvia v. St. Catherine of
Sienna Med. Ctr., 84 A.D.3d 1053, 1053–1054, 923 N.Y.S.2d 856 ; Heller v. Weinberg, 77 A.D.3d 622, 622–623, 909 N.Y.S.2d 477 ). Once the defendant has made such a showing, the plaintiff, in opposition, must submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements as to which the defendant met the prima facie burden (see Guctas v. Pessolano, 132 A.D.3d at 633, 17 N.Y.S.3d 749 ; Mitchell v. Grace Plaza of Great Neck, Inc., 115 A.D.3d 819, 819–820, 982 N.Y.S.2d 361 ; Poter v. Adams, 104 A.D.3d at 926, 961 N.Y.S.2d 556 ; Stukas v. Streiter, 83 A.D.3d 18, 23–24, 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 summary judgment’ " ( Mitchell v. Grace Plaza of Great Neck, Inc., 115 A.D.3d at 819, 982 N.Y.S.2d 361, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674 ).
Here, in support of their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them, the moving defendants submitted expert affirmations that established, prima facie, that none of them departed from good and accepted standards of medical practice in their treatment of the plaintiff's decedent (see Mitchell v. Grace Plaza of Great Neck, Inc., 115 A.D.3d at 820, 982 N.Y.S.2d 361 ; Arocho v. D. Kruger, P.A., 110 A.D.3d 749, 973 N.Y.S.2d 252 ; Khosrova v. Westermann, 109 A.D.3d 965, 966, 971 N.Y.S.2d 565 ; Sheenan–Conrades v. Winifred Masterson Burke Rehabilitation Hosp., 51 A.D.3d 769, 770, 858 N.Y.S.2d 280 ). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his medical expert's affidavit, submitted in opposition to all the motions, was conclusory, speculative, and without basis in the record, and, therefore, it was insufficient to raise a triable issue of fact (see Mitchell v. Grace Plaza of Great Neck, Inc., 115 A.D.3d at 820, 982 N.Y.S.2d 361 ; Khosrova v. Westermann, 109 A.D.3d at 967, 971 N.Y.S.2d 565 ; Matos v. Schwartz, 104 A.D.3d 650, 652, 960 N.Y.S.2d 209 ; DiGeronimo v. Fuchs, 101 A.D.3d 933, 936, 957 N.Y.S.2d 167 ; Lahara v. Auteri, 97 A.D.3d 799, 799–800, 948 N.Y.S.2d 693 ).
Accordingly, the Supreme Court properly granted the moving defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them.