| Burgos v Rateb |
| 2009 NY Slip Op 05738 [64 AD3d 530] |
| July 7, 2009 |
| Appellate Division, Second Department |
| Elpidia Burgos, Appellant, v Mahmoud Said Hassan Ratebet al., Defendants, and Ayman Shahin, Respondent. |
—[*1] Callan, Koster, Brady & Brennan, LLP, New York, N.Y. (Michael P. Kandler of counsel),for respondent.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals (1)from so much of an order of the Supreme Court, Kings County (Jacobson, J.), dated May 17,2007, as amended by an order of the same court dated July 19, 2007, as granted that branch ofthe motion of the defendant Ayman Shahin which was for summary judgment dismissing thecomplaint insofar as asserted against him, and (2), as limited by her brief, from so much of anorder of the same court dated April 2, 2008, as denied that branch of her motion which was forleave to renew.
Ordered that the order dated May 17, 2007, as amended, and the order dated April 2, 2008,are affirmed insofar as appealed from, with one bill of costs.
The requisite elements of proof in a medical malpractice action are a deviation or departurefrom good and accepted medical practice and evidence that such departure was a proximatecause of the injury (see Rebozo vWilen, 41 AD3d 457, 458 [2007]). The defendant Ayman Shahin demonstrated primafacie entitlement to summary judgment dismissing the complaint insofar as asserted against himby the submission of extensive medical records and an expert affidavit which established, to areasonable degree of medical certainty, that Shahin did not depart from the accepted standard ofcare and that, in any event, any alleged acts or omissions on his part were not the proximatecause of the plaintiff's injuries (seegenerally Boutin v Bay Shore Family Health Ctr., 59 AD3d 368 [2009]; Hernandez v Hochman, 56 AD3d427 [2008]; Myers v Ferrara,56 AD3d 78 [2008]; Shahid vNew York City Health & Hosps. Corp., 47 AD3d 800 [2008]). The plaintiff'ssubmissions in opposition were insufficient to raise a triable issue of fact (see Vera v Montefiore Med. Ctr., 60AD3d 408 [2009]; Volovar vCatholic Health Sys. of Long Is., Inc., 58 AD3d 830 [2009]). The plaintiff's contentionthat the branch of Shahin's motion which was for summary judgment dismissing the complaintinsofar as asserted against him was premature is raised for the first time on appeal and thereforeis not properly before us. Accordingly, the Supreme Court properly granted that branch ofShahin's motion which was for summary judgment dismissing the complaint insofar as assertedagainst him.[*2]
The Supreme Court properly denied that branch of theplaintiff's motion which was for leave to renew, as the plaintiff failed to offer a reasonablejustification for her failure to present the evidence offered in support of renewal in heropposition to that branch of Shahin's original motion which was for summary judgmentdismissing the complaint insofar as asserted against him (see CPLR 2221 [e]; Orlando v City of New York, 21 AD3d357 [2005]). The retention of a new expert is not a legitimate basis for renewal; renewal "isnot a second chance freely given to parties who have not exercised due diligence in making theirfirst factual presentation" (Welch Foods v Wilson, 247 AD2d 830, 831 [1998]; see Reshevsky v United Water N.Y., Inc.,46 AD3d 532 [2007]; Mundo v SMS Hasenclever Maschinenfabrik, 224 AD2d343, 344 [1996]). Skelos, J.P., Angiolillo, Chambers and Lott, JJ., concur.