| James v Wormuth |
| 2010 NY Slip Op 05445 [74 AD3d 1895] |
| June 18, 2010 |
| Appellate Division, Fourth Department |
| Marguerite James, Appellant, v David Wormuth, M.D., et al.,Respondents. |
—[*1] Martin, Ganotis, Brown, Mould & Currie, P.C., Syracuse (John Ganotis of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.),entered September 10, 2009 in a medical malpractice action. The order, insofar as appealedfrom, granted defendants' motion for summary judgment dismissing the complaint.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff appeals, as limited by her brief, from that part of an order grantingthe motion of defendants for summary judgment dismissing the complaint in this medicalmalpractice action. Defendants had " 'the initial burden of establishing the absence of anydeparture from good and accepted medical practice or that the plaintiff was not injured thereby' "(Sandmann v Shapiro, 53 AD3d537, 537 [2008]; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]). "Where, as here, an expert's affidavit fails to address each of the specificfactual claims of negligence raised in [the] plaintiff's bill of particulars, that affidavit isinsufficient to support a motion for summary judgment as a matter of law" (Larsen v Banwar, 70 AD3d 1337,1338 [2010]; see Grant v Hudson Val.Hosp. Ctr., 55 AD3d 874 [2008]). Indeed, defendants submitted affidavits from twomedical experts, neither of which addressed the specific claims of negligence raised in thecomplaint, as amplified by the bill of particulars. Consequently, defendants' motion should havebeen denied, regardless of the sufficiency of plaintiff's opposing papers (see Winegrad,64 NY2d at 853; Kuri vBhattacharya, 44 AD3d 718 [2007]). Present—Smith, J.P., Fahey, Carni, Greenand Gorski, JJ.