| Heller v Weinberg |
| 2010 NY Slip Op 07143 [77 AD3d 622] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Steven Heller, Individually and as Administrator of the Estate of GailHeller, Deceased, Appellant, v Jed Jacob Weinberg, M.D., et al.,Respondents. |
—[*1] Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesenof counsel), for respondents Jed Jacob Weinberg, M.D., West Carver Medical Associates, P.C., PaulK. Brodsky, and Alan Schuller. Charles E. Kutner, LLP, New York, N.Y. (Patrick Mevs of counsel), for respondents HollaceJackson and Hollace Jackson, M.D., F.A.C.O.G., P.C.
In an action to recover damages for medical malpractice, etc., the plaintiff appeals from (1) anorder of the Supreme Court, Suffolk County (Spinner, J.), dated August 10, 2009, which granted thosebranches of the motion of the defendants Jed Jacob Weinberg, West Carver Medical Associates, P.C.,Paul K. Brodsky, and Alan Schuller, and the separate motion of the defendants Hollace Jackson andHollace Jackson, M.D., F.A.C.O.G., P.C., which were for summary judgment dismissing the complaintinsofar as asserted against each of them, (2) a judgment of the same court entered September 23,2009, which is in favor of the defendants Hollace Jackson, and Hollace Jackson, M.D., F.A.C.O.G.,P.C., and against them, dismissing the complaint insofar as asserted against those defendants, and (3) ajudgment of the same court entered October 28, 2009, which is in favor of the defendants Jed JacobWeinberg, West Carver Medical Associates, P.C., Paul K. Brodsky, and Alan Schuller and againstthem, dismissing the complaint insofar as asserted against those defendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgments are affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately and filingseparate briefs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of the judgments in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review andhave been considered on the appeals from the judgments (see CPLR 5501 [a] [1]).[*2]
The requisite elements of proof in a medical malpractice actionare a deviation or departure from accepted community standards of practice and evidence that suchdeparture was a proximate cause of injury or damage (see Dolan v Halpern, 73 AD3d 1117 [2010]; Anonymous v Wyckoff Hgts. Med. Ctr., 73AD3d 1104 [2010]; Dunn v Khan,62 AD3d 828, 829 [2009]; Rosen vJohn J. Foley Skilled Nursing Facility, 45 AD3d 558, 559 [2007]). On a motion for summaryjudgment, a defendant doctor has the burden of establishing the absence of any departure from goodand accepted medical practice or that the plaintiff was not injured thereby (see Dolan vHalpern,73 AD3d at 1117; Anonymous v Wyckoff Hgts. Med. Ctr., 73 AD3d at 1104;Murray v Hirsch, 58 AD3d 701[2009]; Shahid v New York City Health &Hosps. Corp., 47 AD3d 800, 801 [2008]). "In opposition, a plaintiff must submit evidentiaryfacts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of atriable issue of fact" (Deutsch vChaglassian, 71 AD3d 718, 719 [2010]; see Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]; Shichman v Yasmer,74 AD3d 1316 [2010]). General allegations that are conclusory and unsupported by competentevidence tending to establish the essential elements of medical malpractice are insufficient to defeatsummary judgment (see Shectman vWilson, 68 AD3d 848, 849 [2009]; Sheenan-Conrades v Winifred Masterson Burke Rehabilitation Hosp., 51AD3d 769, 770 [2008]; Shahid v New York City Health & Hosps. Corp., 47 AD3d at801; Perro v Schappert, 47 AD3d694, 694-695 [2008]).
Here, the defendants established their prima facie entitlement to judgment as a matter of law bysubmitting, inter alia, expert physicians' affirmations asserting that they did not deviate from the relevantstandard of care. In opposition, the plaintiff's expert submissions failed to raise a triable issue of fact(see Murray v Hirsch, 58 AD3d at 701; Myers v Ferrara, 56 AD3d 78, 83-86 [2008]; Shahid v New YorkCity Health & Hosps. Corp., 47 AD3d at 801; Mosezhnik v Berenstein, 33 AD3d 895, 897 [2006]). Accordingly, theSupreme Court properly granted the defendants' respective motions for summary judgment dismissingthe complaint insofar as asserted against each of them. Dillon, J.P., Florio, Roman and Sgroi, JJ.,concur.