Opinion
April 17, 1972
In a medical malpractice action to recover damages for wrongful death and conscious pain and suffering, defendants Kalkstein and Weininger appeal from so much of an order of the Supreme Court, Queens County, dated November 8, 1971, as denied their motion to sever the action as to them and grant summary judgment in their favor. Order reversed insofar as appealed from, on the law, with $10 costs and disbursements, and motion for severance of action and summary judgment granted. The motion for summary judgment is supported by affidavits and a deposition in an examination before trial showing that appellants' decedent was never the physician of plaintiff's wife. It was then mandatory upon plaintiff to submit evidentiary facts or materials, by affidavit or otherwise, rebutting the prima facie showing that the decedent was not the physician of plaintiff's wife and demonstrating the existence of a triable issue of fact. The affidavit by the attorney for plaintiff setting forth certain conclusory statements is not sufficient to defeat the motion for summary judgment ( Indig v. Finkelstein, 23 N.Y.2d 728). Rabin, P.J., Munder, Martuscello, Latham and Benjamin, JJ., concur.