| G.P. v Children's Hosp. of Buffalo |
| 2007 NY Slip Op 09298 [45 AD3d 1484] |
| November 23, 2007 |
| Appellate Division, Fourth Department |
| G.P., an Infant, by and through John Piatko and Another, HerParents and Natural Guardians, et al., Respondents, v Children's Hospital of Buffalo et al.,Appellants. |
—[*1] Feldman, Kieffer & Herman, LLP, Buffalo (James E. Eagan of counsel), fordefendant-appellant Linda Brodsky, M.D. Dempsey & Dempsey, Buffalo (Helen Kaney Dempsey of counsel), forplaintiffs-respondents.
Appeals from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), enteredSeptember 15, 2006 in a medical malpractice action. The order, among other things, denied themotion of defendant Linda Brodsky, M.D. for summary judgment dismissing the complaint andcross claim against her and denied the cross motion of defendant Children's Hospital of Buffalofor summary judgment dismissing the complaint and cross claim against it.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslymodified on the law by granting the cross motion of defendant Children's Hospital of Buffalo anddismissing the complaint and cross claim against it and as modified the order is affirmed withoutcosts.
Memorandum: Plaintiffs commenced this action to recover damages for injuries allegedlysustained by plaintiff daughter (plaintiff) as the result of a surgical procedure performed bydefendant Linda Brodsky, M.D. at defendant Children's Hospital of Buffalo (Hospital). Contraryto the contention of Brodsky, Supreme Court properly denied her motion for summary judgmentdismissing the complaint and cross claim against her. Brodsky failed to establish that she did notdepart from accepted medical practice or that plaintiff was not injured thereby, and she thusfailed to meet her initial burden (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]; Santiago vFilstein, 35 AD3d 184, 186 [2006]; cf. Maust v Arseneau, 116 AD2d 1012[1986]).
We further conclude, however, that the court erred in denying the Hospital's cross motion forsummary judgment dismissing the complaint and cross claim against it, and we therefore modifythe order accordingly. The Hospital met its initial burden by establishing that no act or [*2]omission on the part of its employees either resulted in orexacerbated plaintiff's alleged injuries (see Estate of Mollo v Rothman, 284 AD2d 299[2001]; cf. Kless v Paul T.S. Lee, M.D.,P.C., 19 AD3d 1083 [2005];see generally Keevan v Rifkin, 41 AD3d 661, 662 [2007]), and plaintiffs failed to raisean issue of fact sufficient to defeat the cross motion (see Sheikh v Sinha, 272 AD2d 465[2000]; see also Sledziewski v Cioffi, 137 AD2d 186, 190 [1988]; see generallyZuckerman v City of New York, 49 NY2d 557, 562 [1980]). Although plaintiffs may haveraised issues of fact concerning the Hospital's role in the destruction of video footage ofplaintiff's surgery, plaintiffs failed to establish that the missing footage was relevant to the claimsasserted against the Hospital. Thus, those issues of fact are insufficient to defeat the Hospital'sentitlement to summary judgment (cf. Sage Realty Corp. v Proskauer Rose, 275 AD2d11, 16-17 [2000], lv dismissed 96 NY2d 937 [2001]). Present—Scudder, P.J.,Hurlbutt, Smith, Fahey and Pine, JJ.