Opinion
Argued December 13, 1999
January 31, 2000
In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Rosato, J.), dated November 17, 1998, which, upon the granting of the defendants' motions to dismiss the complaint prior to any proof being taken at trial, is in favor of the defendants and against him dismissing the complaint.
Walter C. Reid, New York, N.Y., for appellant.
Vout A. Cristantello of counsel), for respondents Rye Ridge Orthopedic Associates, P.C. and Michael R. Miller.
Bartlett, McDonough, Bastone Monaghan, LLP, White Plains, N Y (Edward J. Guardaro, Jr., of counsel), for respondent Sheldon Manspeizer.
DANIEL W. JOY, J.P., MYRIAM J. ALTMAN, GLORIA GOLDSTEIN, ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.
The plaintiff did not serve a notice pursuant to CPLR 3101(d) and acknowledged he was not going to present expert opinion testimony to prove that the defendants' conduct constituted a deviation from the requisite standard of care. Accordingly, he was necessarily unable to make out a prima facie case, and the complaint was properly dismissed (see, Kalkan v. Nyack Hosp., 214 A.D.2d 538 ).
JOY, J.P., ALTMAN, GOLDSTEIN, and SCHMIDT, JJ., concur.