| Guzzi v Gewirtz |
| 2011 NY Slip Op 01801 [82 AD3d 838] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Marie Sammartino Guzzi et al., Appellants, v IleneGewirtz, Respondent, et al., Defendants. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Ellen B. Fishman, John L.A. Lyddane, andStewart Milch of counsel), for respondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1)an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 21, 2009, whichgranted the motion of the defendant Ilene Gewirtz for summary judgment dismissing thecomplaint insofar as asserted against her, and (2) a judgment of the same court entered November4, 2009, which, upon the order, is in favor of the defendant Ilene Gewirtz and against themdismissing the complaint insofar as asserted against that defendant.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed, on the law, the motion of the defendant Ilene Gewirtzfor summary judgment dismissing the complaint insofar as asserted against her is denied, and theorder is modified accordingly; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment 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 appeal from the judgment (see CPLR 5501 [a] [1]).
"The essential elements of medical malpractice are (1) a deviation or departure from acceptedmedical practice, and (2) evidence that such departure was a proximate cause of injury"(DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d 757, 758[2008]). Where a defendant in a medical malpractice action, in moving for summary judgment,makes only a prima facie showing that he or she did not deviate or depart from accepted medicalpractice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of factas to the alleged [*2]deviation or departure, and need not addressthe issue of proximate cause (see Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). [decided herewith]).
Here, the defendant Ilene Gewirtz established her prima facie entitlement to judgment as amatter of law on the issue of deviation or departure from accepted medical practice bysubmitting, inter alia, an expert affirmation that she did not depart from accepted standards ofcare. In opposition, however, the plaintiffs, by the submission of an affidavit of their medicalexpert, raised a triable issue of fact as to whether Gewirtz's treatment of the plaintiff MarieSammartino Guzzi departed from accepted standards of medical practice (see generally Johnson v Queens-Long Is.Med. Group, P.C., 23 AD3d 525, 527 [2005]; Zarzana v Sheepshead Bay Obstetrics& Gynecology, 289 AD2d 570, 571 [2001]; Walker v Mount Vernon Hosp., 272AD2d 468 [2000]).
Therefore, the Supreme Court erred in granting Gewirtz's motion for summary judgmentdismissing the complaint insofar as asserted against her. Covello, J.P., Florio, Eng andChambers, JJ., concur.