| Tuorto v Jadali |
| 2009 NY Slip Op 03894 [62 AD3d 784] |
| May 12, 2009 |
| Appellate Division, Second Department |
| William Tuorto et al., Respondents, v Daryoush Jadali etal., Defendants, and Mary J. Spinelli, Appellant. |
—[*1] Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), forrespondents.
In an action to recover damages for medical malpractice, the defendant Mary J. Spinelliappeals from an order of the Supreme Court, Richmond County (McMahon, J.), dated December18, 2007, which denied her motion for summary judgment dismissing the complaint insofar asasserted against her.
Ordered that the order is affirmed, with costs.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom good and accepted medical practice and that such departure was a proximate cause of theplaintiff's injuries (see Rebozo v Wilen,41 AD3d 457, 458 [2007]). The defendant Mary J. Spinelli, an obstetrician/gynecologist(hereinafter OB/GYN), met her prima facie burden of establishing her entitlement to judgment asa matter of law by submitting her own affidavit which demonstrated that she did not depart fromgood and accepted medical practice in her treatment of the plaintiff Joanna Tuorto (hereinafterthe plaintiff mother), and that her treatment was not a proximate cause of the infant plaintiff'sinjuries (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Rebozo v Wilen,41 AD3d at 458).
However, in opposition, the plaintiffs submitted affirmations from an expert OB/GYN andan expert pediatrician/neonatologist, which were sufficient to raise triable issues of fact as towhether Spinelli departed from good and accepted medical practice in her treatment of theplaintiff mother [*2]and whether such departure was a proximatecause of the infant plaintiff's injuries (see Roca v Perel, 51 AD3d 757, 759 [2008]; Rosenman v Shrestha, 48 AD3d781, 784 [2008]; Feinberg v Feit,23 AD3d 517, 519 [2005]). Accordingly, Spinelli's motion for summary judgmentdismissing the complaint insofar as asserted against her was properly denied. Skelos, J.P., Florio,Leventhal and Hall, JJ., concur.