| Dolan v Halpern |
| 2010 NY Slip Op 04540 [73 AD3d 1117] |
| May 25, 2010 |
| Appellate Division, Second Department |
| Lynne Dolan, Respondent, v David Halpern et al.,Defendants, and Hazar Michael et al., Appellants. |
—[*1] Law Offices of Charles X. Connick, PLLC, Mineola, N.Y. (Barbara A. Myers of counsel),for appellants Steven Geier and Alan S. Lipp. McAndrew, Conboy & Prisco, LLP, Woodbury, N.Y. (Mary C. Azzaretto of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendants Hazar Michael andWinthrop Gastroenterology, P.C., appeal, and the defendants Steven Geier and Alan S. Lippseparately appeal, as limited by their respective briefs, from so much of an order of the SupremeCourt, Nassau County (Diamond, J.), dated July 13, 2009, as denied those branches of theirseparate motions which were for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is reversed insofar as appealed from, on the law, with one bill of costs,and those branches of the separate motions of the defendants Hazar Michael and WinthropGastroenterology, P.C., and the defendants Steven Geier and Alan S. Lipp, which were forsummary judgment dismissing the complaint insofar as asserted against them are granted.
The plaintiff commenced this action to recover damages for medical malpractice against,among others, the defendant doctors Steven Geier, Alan Lipp, and Hazar Michael, and WinthropGastroenterology, P.C. (hereinafter Winthrop). The plaintiff alleged that Geier, Lipp, andMichael were negligent from September 1, 2002, through November 1, 2004, in their treatmentof her, resulting in the need for her to undergo surgery. The plaintiff alleged, inter alia, that thosedefendants were negligent in failing to administer appropriate tests, in their performance ofsurgical procedures, and in failing to properly diagnose a bile duct leak.
Geier and Lipp moved, and Michael and Winthrop separately moved, among other things,for summary judgment dismissing the complaint insofar as asserted against them. The SupremeCourt denied those branches of the respective motions, finding that the plaintiff raised triableissues of fact in opposition to the appellants' respective prima facie showings of entitlement tojudgment as a matter of law. We reverse.[*2]
"To establish a prima facie case of liability in a medicalmalpractice action, a plaintiff must prove (1) the standard of care in the locality where thetreatment occurred, (2) that the defendant breached that standard of care, and (3) that the breachof the standard was the proximate cause of injury. Therefore, on a motion for summaryjudgment, a defendant has the initial burden of establishing the absence of any departure fromgood and accepted medical practice or that the plaintiff was not injured thereby. In opposition, aplaintiff then must submit material or evidentiary facts to rebut the defendant's prima facieshowing that he or she was not negligent in treating the plaintiff" (Langan v St. Vincent'sHosp. of N.Y., 64 AD3d 632, 632-633 [2009] [internal quotation marks and citationsomitted]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v NewYork Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Feinberg v Feit, 23 AD3d 517,518-519 [2005]). Here, Geier and Lipp, and Michael and Winthrop, established their entitlementto judgment as a matter of law by submitting, inter alia, expert affirmations that they did notdepart from accepted standards of care.
In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff's expert affidavitfailed to address the theory of liability alleged in the plaintiff's bill of particulars regarding theappellants' failure to diagnose a bile duct leak, asserting instead an alternative theory of liabilityfor the first time in opposition to the motions (see Golubov v Wolfson, 22 AD3d 635[2005]; Winters v St. Vincent's Med. Ctr. of Richmond, 273 AD2d 465 [2000];Alvarez v Lindsay Park Hous. Corp., 175 AD2d 225 [1991]; Kane v City of NewYork, 137 AD2d 658, 659-660 [1988]), failed to address the specific contentions of theappellants' experts, and otherwise was speculative and conclusory (see Courtney v Port Auth.of N.Y. & N.J., 34 AD3d 716, 719 [2006]; DiMitri v Monsouri, 302 AD2d 420, 421[2003]; Lane v Feinberg, 293 AD2d 654, 655 [2002]; Kaplan v Hamilton Med.Assoc., 262 AD2d 609, 610 [1999]; Holbrook v United Hosp. Med. Ctr., 248 AD2d358, 359 [1998]). Accordingly, the Supreme Court should have granted those branches of themotions which were for summary judgment dismissing the complaint insofar as asserted againstthe appellants. Mastro, J.P., Covello, Eng and Belen, JJ., concur. [Prior Case History: 2009NY Slip Op 31596(U).]