| Rivera v State of New York |
| 2006 NYSlipOp 03873 |
| May 16, 2006 |
| Appellate Division, Second Department |
| Jose Rivera, Appellant, v State of New York, Respondent. |
—[*1]In a claim to recover damages for medical malpractice, the claimant appeals, as limited by his brief, from so much of an order of the Court of Claims (Scuccimarra, J.), dated February 18, 2005, as granted the defendant's cross motion for summary judgment dismissing the claim.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the claim is reinstated.
The claimant commenced this claim to recover damages for medical malpractice. The defendant cross-moved for summary judgment dismissing the claim. However, in support of its cross motion, the defendant failed to demonstrate, prima facie, either that there was no departure from good and accepted medical practice during the diagnosis and treatment of the claimant, or, if there was, that the alleged departure was not a proximate cause of any of the damages alleged (cf. Mullally v State of New York, 289 AD2d 308 [2001]; Kagan v State of New York, 221 AD2d 7 [1996]; Stanback v State of New York, 163 AD2d 298 [1990]). Thus, the cross motion should have been denied regardless of the sufficiency of the claimant's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Ritter, J.P., Luciano, Fisher and Lifson, JJ., concur.