| Orsi v Haralabatos |
| 2011 NY Slip Op 08570 [89 AD3d 997] |
| November 22, 2011 |
| Appellate Division, Second Department |
| Keith Orsi et al., Respondents, v Susan Haralabatos et al.,Appellants, et al., Defendants. |
—[*1] Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Joseph C. Muzio and Dana E. Heitz ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the defendants Susan Haralabatosand Stony Brook Orthopaedic Associates appeal from so much of an order of the Supreme Court,Suffolk County (Sweeney, J.), dated July 20, 2010, as denied their motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motionof the defendants Susan Haralabatos and Stony Brook Orthopaedic Associates for summary judgmentdismissing the complaint insofar as asserted against them is granted.
" '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' " (Barnett v Fashakin, 85 AD3d 832, 834[2011], quoting DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Guzzi v Gewirtz, 82 AD3d 838[2011]). Thus, on a motion for summary judgment dismissing the complaint in a medical malpracticeaction, the defendant health care provider has the initial burden of establishing the absence of anydeparture from good and accepted medical practice or that the plaintiff was not injured thereby (see Wexelbaum v Jean, 80 AD3d 756,757 [2011]; Rebozo v Wilen, 41 AD3d457, 458 [2007]). "[T]o defeat summary judgment, the nonmoving party need only raise a triableissue of fact with respect to the element of the cause of action or theory of nonliability that is the subjectof the moving party's prima facie showing" (Stukas v Streiter, 83 AD3d 18, 24 [2011]).
In support of their motion for summary judgment dismissing the complaint insofar as assertedagainst them, the defendants Susan Haralabatos and her employer, Stony Brook OrthopaedicAssociates (hereinafter together the defendants), submitted affirmations from expert physicians thatwere sufficient to establish, prima facie, that the post-operative care received by the injured plaintifffollowing repair of a bone fracture did not depart from good and accepted standards of medicalpractice, and that, in any event, any alleged departures did not proximately cause the injured plaintiff'sinjury (see Lowhar v Eva Stern 500,LLC, 70 AD3d 654, 655 [2010]; Wiands v Albany Med. Ctr., 29 AD3d 982, 983[2006]). Therefore, the defendants met their burden of establishing their prima facie entitlement tojudgment as a matter of law.[*2]
While the plaintiffs, in opposition, submitted an affirmation froman expert physician that raised triable issues of fact as to whether Dr. Haralabatos may have departedfrom good and accepted practice, they failed to raise a triable issue of fact as to whether the allegeddepartures proximately caused the injured plaintiff's condition (see Wilkins v Khoury, 72 AD3d 1067, 1068 [2010]; see generally Fahey v A.O. Smith Corp., 77AD3d 612, 616 [2010]).
Accordingly, the defendants' motion for summary judgment dismissing the complaint insofar asasserted against them should have been granted. Mastro, J.P., Dillon, Sgroi and Miller, JJ., concur.