| Moran v Muscarella |
| 2011 NY Slip Op 06692 [87 AD3d 1299] |
| September 30, 2011 |
| Appellate Division, Fourth Department |
| Joseph Moran et al., Respondents, v Joseph L. Muscarella,Jr., D.O., et al., Appellants, et al., Defendants. |
—[*1] Gelber & O'Connell, LLC, Amherst (Herschel Gelber of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (John M. Curran, J.), entered May19, 2010 in a medical malpractice action. The order denied the motion of defendants Joseph L.Muscarella, Jr., D.O. and Buffalo ENT Specialists, LLP for summary judgment dismissing thecomplaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is granted and the complaint is dismissed in its entirety.
Memorandum: In this medical malpractice action, defendants-appellants (hereafter,defendants), the sole remaining defendants, appeal from an order denying their motion forsummary judgment dismissing the complaint against them. The underlying facts are set forth inMoran v Muscarella (85 AD3d1579 [2011]), and we shall not repeat them here. We conclude that Supreme Court erred indenying defendants' motion inasmuch as they met their initial burden and plaintiffs failed to raisea triable issue of fact to defeat the motion (see generally Zuckerman v City of New York,49 NY2d 557, 562 [1980]). The opinions of plaintiffs' experts were based on speculation orunsupported by competent evidence and thus were insufficient to raise a triable issue of fact (see Caulkins v Vicinanzo, 71 AD3d1224, 1226 [2010]).
Here, defendants established as a matter of law that the care provided to Joseph Moran(plaintiff) by defendant Joseph L. Muscarella, Jr., D.O. was within the standards of acceptablemedical care and in any event was not a proximate cause of plaintiff's injuries (see generally Humphrey v Gardner, 81AD3d 1257 [2011]). With respect to the absence of proximate cause, we note thatdefendants submitted evidence establishing that, before the surgery in question, plaintiff sufferedfrom carpal tunnel syndrome, multi-level disc degeneration and herniation with foraminalstenosis, and plaintiffs' experts did not address those preexisting conditions. We do not addressplaintiffs' theory of liability that the length of plaintiff's surgery was excessive inasmuch as it wasraised for the first time in opposition to defendants' motion, i.e., based on the statement of one ofplaintiffs' experts in an affirmation that the injury to plaintiff's spine was[*2]"more likely than not a result of the . . . length of timehe remained in [the] position" in which he was placed during the surgery (see Darrisaw v Strong Mem. Hosp., 74AD3d 1769, 1770 [2010], affd 16 NY3d 729 [2011]). Present—Scudder, P.J.,Smith, Carni, Lindley and Martoche, JJ.