| Castro v New York City Health & Hosps. Corp. |
| 2010 NY Slip Op 05349 [74 AD3d 1005] |
| June 15, 2010 |
| Appellate Division, Second Department |
| Julio C. Castro, Respondent, v New York City Health andHospitals Corporation et al., Defendants, and Cyrus O. McCalla et al.,Appellants. |
—[*1] Kanterman O'Leary & Soscia, LLP, White Plains, N.Y. (Anthony Soscia and Robert M.Nash of counsel), for appellant Tak Kwan. Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y.(Gregory A. Cascino of counsel), for appellant Judith Mitchell. Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), forrespondent.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc.,the defendants Cyrus O. McCalla, Tak Kwan, and Judith Mitchell separately appeal, as limitedby their respective briefs, from so much of an order of the Supreme Court, Kings County(Jackson, J.), dated April 20, 2009, as denied their separate motions for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is 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 accepted community standards of practice, and evidence that such deviation or departurewas a proximate cause of injury or damage (see Deutsch v Chaglassian, 71 AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57AD3d 839, 842 [2008]). On a motion for summary judgment, a defendant physician has theburden of establishing the absence of any deviation or departure, or that the patient was notinjured thereby (see Deutsch v Chaglassian, 71 AD3d at 719; Rebozo v Wilen, 41 AD3d 457,458 [2007]). "In opposition, a plaintiff must submit evidentiary facts or materials to rebut the[defendant physician's] prima facie showing, so as to demonstrate the existence of a triable issueof fact" (Deutsch v Chaglassian, 71 AD3d at 719, citing Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
Here, the defendant Cyrus O. McCalla, an obstetrician/perinatologist who treated theplaintiff's decedent, made a prima facie showing of his entitlement to judgment as a matter oflaw. [*2]McCalla's submissions, which included an expert'saffirmation, established that he did not deviate or depart from accepted medical practice in histreatment of the plaintiff's decedent (see Mendez v City of New York, 295 AD2d 487,488 [2002]). However, the expert's affirmation submitted by the plaintiff in opposition raised atriable issue of fact (see Taylor v NyackHosp., 18 AD3d 537, 538-539 [2005]). Accordingly, the Supreme Court properlydenied McCalla's motion for summary judgment.
The defendant Tak Kwan, a cardiologist who treated the plaintiff's decedent, filed anuntimely motion for summary judgment, and failed to show "good cause" for filing a late motion(see Brill v City of New York, 2NY3d 648, 651 [2004]). Thus, the Supreme Court properly denied Kwan's motion asuntimely.
In moving for summary judgment, the defendant Judith Mitchell, another cardiologist whotreated the plaintiff's decedent, relied on a conclusory expert affirmation. Thus, Mitchell failed tomake a prima facie showing of her entitlement to judgment as a matter of law (see Vincini v Insel, 1 AD3d 351[2003]). Accordingly, the Supreme Court properly denied her motion for summary judgment,regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Mastro, J.P., Covello, Belen and Hall, JJ.,concur.