| Deutsch v Chaglassian |
| 2010 NY Slip Op 01912 [71 AD3d 718] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Tali Deutsch et al., Respondents, v Mary Chaglassian etal., Defendants, and Stephen Weiser, Appellant. |
—[*1] Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice and lack of informedconsent, etc., the defendant Stephen Weiser appeals from an order of the Supreme Court, QueensCounty (O'Donoghue, J.), dated May 26, 2009, which denied his motion for summary judgmentdismissing the complaint insofar as asserted against him.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the motion of the defendant Stephen Weiser which was for summary judgmentdismissing the cause of action alleging lack of informed consent insofar as asserted against himand substituting therefor a provision granting that branch of the motion; as so modified, the orderis affirmed, without costs or disbursements.
"The requisite elements of proof in a medical malpractice action are a deviation or departurefrom accepted community standards of practice and evidence that such departure was aproximate cause of injury or damage" (Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2008]; see Flanagan v Catskill Regional Med.Ctr., 65 AD3d 563, 565 [2009]; Rebozo v Wilen, 41 AD3d 457, 458 [2007]). "On a motion forsummary judgment, a defendant doctor has the burden of establishing the absence of anydeparture from good and accepted medical practice or that the plaintiff was not injured thereby"(Rebozo v Wilen, 41 AD3d at 458). In opposition, a plaintiff must submit evidentiaryfacts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existenceof a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
"General allegations of medical malpractice, merely conclusory and unsupported bycompetent evidence tending to establish the essential elements of medical malpractice, areinsufficient to defeat defendant physician's summary judgment motion" (Alvarez v ProspectHosp., 68 NY2d at 325). "Summary judgment is not appropriate in a medical malpracticeaction where the parties adduce conflicting medical expert opinions. Such credibility issues canonly be resolved by a jury" (Feinberg vFeit, 23 AD3d 517, 519 [2005] [citations omitted]; see Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 661 [2009]).[*2]
The defendant Stephen Weiser established his primafacie entitlement to judgment as a matter of law dismissing the cause of action alleging medicalmalpractice insofar as asserted against him by submitting, inter alia, an expert physician'saffirmation asserting that he did not deviate from the relevant standards of practice. Inopposition, the plaintiffs raised triable issues of fact by submitting an affirmation from theirexpert (see Alvarez v Prospect Hosp., 68 NY2d at 324; Feinberg v Feit, 23AD3d at 519).
Weiser also established his prima facie entitlement to judgment as a matter of law dismissingthe cause of action alleging lack of informed consent insofar as asserted against him, and theplaintiff failed to raise a triable issue of fact in opposition (see Public Health Law§ 2805-d; see also Schel v Roth, 242 AD2d 697 [1997]). The Supreme Courtshould have granted that branch of Weiser's motion which was for summary judgmentdismissing the cause of action alleging lack of informed consent insofar as asserted against him,since he did not perform a "non-emergency treatment, procedure or surgery" or "a diagnosticprocedure which involved invasion or disruption of the integrity of the body" (Public HealthLaw § 2805-d [2]).
Weiser's remaining contentions are without merit. Mastro, J.P., Dickerson, Belen andRoman, JJ., concur.