| Callahan v Guneratne |
| 2010 NY Slip Op 08056 [78 AD3d 753] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Andrew Callahan, as Administrator of the Estate of Susan Callahan,Deceased, Appellant, v Franklin Guneratne, M.D., et al. Respondents, et al.Defendant. |
—[*1] VoutÉ, Lohrfink, Magro & Collins, LLP, White Plains, N.Y. (Laura K. Silverstein ofcounsel), for respondent Franklin Guneratne. Tarshis Catania Liberth Mahon & Milligram, PLLC, Newburgh, N.Y. (Steven I. Milligramand Rebecca Baldwin Mantello of counsel), for respondent Arif M. Muslim.
In an action to recover damages for medical malpractice, etc., the plaintiff appeals (1), aslimited by his brief, from so much of an order of the Supreme Court, Orange County (Owen, J.),entered September 3, 2009, as granted the separate motions of the defendant Franklin Guneratneand the defendant Arif M. Muslim for summary judgment dismissing the complaint insofar asasserted against each of them, (2) from a judgment of the same court entered October 7, 2009,which, upon so much of the order as granted the motion of the defendant Arif M. Muslim forsummary judgment dismissing the complaint insofar as asserted against him, is in favor of thatdefendant and against him, and (3) from a judgment of the same court entered November 17,2009, which, upon so much of the order as granted the motion of the defendant FranklinGuneratne for summary judgment dismissing the complaint insofar as asserted against him, is infavor of that defendant and against him.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgments are reversed, on the law, the motions of the defendants FranklinGuneratne and Arif M. Muslim for summary judgment dismissing the complaint insofar asasserted against each of them are denied, and the order is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
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 reviewand have been considered on the appeals from the judgments (see CPLR 5501 [a] [1]).[*2]
"[T]he proponent of a summary judgment motion mustmake a prima facie showing of entitlement to judgment as a matter of law, tendering sufficientevidence to demonstrate the absence of any material issues of fact" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]). " 'Failure to make such showing requires denial of themotion, regardless of the sufficiency of the opposing papers' " (Perre v Vassar Bros. Hosp., 52 AD3d670 [2008], quoting Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
The expert affirmations submitted respectively by the defendants Franklin Guneratne andArif M. Muslim (hereinafter together the doctors) in support of their motions for summaryjudgment were conclusory or failed to refute by specific factual reference the allegations of theirmedical malpractice (see Perre v Vassar Bros. Hosp., 52 AD3d at 670). To the extent thateither of the affirmations attempted to refute the plaintiff's allegations by specific factualreference, they were contradicted by the doctors' deposition testimony and hospital records.Therefore, neither Dr. Guneratne nor Dr. Muslim tendered evidence sufficient to demonstrate theabsence of triable issues of fact such as to establish, prima facie, their entitlements to judgmentas a matter of law dismissing the complaint insofar as asserted against either of them (seeAlvarez v Prospect Hosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr.,64 NY2d at 853; Perre v Vassar Bros. Hosp., 52 AD3d at 670).
The parties' remaining contentions either have been rendered academic or are without merit.
Accordingly, the Supreme Court erred in granting the motions for summary judgment.Rivera, J.P., Angiolillo, Chambers and Austin, JJ., concur.