| Larsen v Loychusuk |
| 2008 NY Slip Op 07627 [55 AD3d 560] |
| October 7, 2008 |
| Appellate Division, Second Department |
| Catherine Larsen et al., Respondents, v Kitti Loychusuk et al.,Appellants, et al., Defendants. |
—[*1] Katz & Kreinces, Mineola, N.Y. (Matthew R. Kreinces of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the defendants KittiLoychusuk, Ravindra Kumar Kota, and Caremax Surgical, P.C., appeal (1) from an order of theSupreme Court, Suffolk County (Pines, J.), dated March 12, 2007, which denied their motion forsummary judgment dismissing the complaint insofar as asserted against them, and (2), as limited by theirbrief, from stated portions of an order of the same court dated June 20, 2007, which, inter alia, uponreargument, adhered to the original determination.
Ordered that the appeal from the order dated March 12, 2007 is dismissed, as that order wassuperseded by the order dated June 20, 2007, made upon reargument; and it is further,
Ordered that the order dated June 20, 2007 is affirmed insofar as appealed from; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
On a motion for summary judgment in a medical malpractice action, a defendant doctor has theinitial burden of establishing either the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; Sandmann v Shapiro, 53 AD3d 537 [2008]). In this case, the appellantsdid not make such [*2]a showing, and thus failed to demonstrate, primafacie, their entitlement to judgment as a matter of law. Among other things, the expert affirmation thedefendants submitted in support of their summary judgment motion failed to address many of theplaintiffs' allegations of malpractice set forth in their bills of particulars (see Kuri v Bhattacharya, 44 AD3d 718[2007]). Accordingly, the appellants' motion was properly denied regardless of the sufficiency of theplaintiffs' opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Kuri v Bhattacharya, 44 AD3d718 [2007]), and, upon reargument, the Supreme Court properly adhered to its originaldetermination denying the motion for summary judgment.
The appellants' remaining contentions are without merit. Spolzino, J.P., Florio, Miller andLeventhal, JJ., concur. [See 2007 NY Slip Op 30716(U).]