| Faicco v Golub |
| 2012 NY Slip Op 00485 [91 AD3d 817] |
| Jnury 24, 2012 |
| Appellate Division, Second Department |
| Ava Faicco et al., Appellants, v Stephen Golub et al.,Respondents, et al., Defendants. |
—[*1] Geisler & Gabriele LLP, Garden City, N.Y. (Lori A. Marano and Jody A. Shelmidine ofcounsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal,as limited by their brief, from (1) so much of an order of the Supreme Court, Suffolk County(Spinner, J.), dated December 14, 2010, as granted that branch of the motion of the defendantsStephen Golub, Philip J. Makowski, and Port Jefferson Obstetrics & Gynecology, P.C., whichwas for summary judgment dismissing the complaint insofar as asserted against the defendantsStephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., and (2) so much of a judgmentof the same court entered January 4, 2011, as, upon the order, is in favor of the defendantsStephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., and against them dismissingthe complaint insofar as asserted against those defendants.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is reversed insofar as appealed from, on the law, that branch of themotion of the defendants Stephen Golub, Philip J. Makowski, and Port Jefferson Obstetrics &Gynecology, P.C., which was for summary judgment dismissing the complaint insofar as assertedagainst the defendants Stephen Golub and Port Jefferson Obstetrics & Gynecology, P.C., isdenied, and the order 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 fromaccepted medical practice, and (2) evidence that such departure was a proximate cause of injury'" (Roca v Perel, 51 AD3d 757,758 [2008], quoting DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; see Flaherty v Fromberg, 46 AD3d743, 745 [2007]). "Thus, '[o]n a motion for summary judgment dismissing the [*2]complaint in a medical malpractice action, the defendant doctor hasthe initial burden of establishing the absence of any departure from good and accepted medicalpractice or that the plaintiff was not injured thereby' " (Roca v Perel, 51 AD3d at758-759, quoting Chance v Felder,33 AD3d 645, 645 [2006]; seeStukas v Streiter, 83 AD3d 18, 24 [2011]).
Here, viewing the evidence in the light most favorable to the plaintiffs (see e.g. Pearson v Dix McBride, LLC,63 AD3d 895 [2009]), we conclude that the defendants Stephen Golub, Philip J. Makowski,and Port Jefferson Obstetrics & Gynecology, P.C. (hereinafter collectively the movants), failed toestablish, prima facie, that the defendants Stephen Golub and Port Jefferson Obstetrics &Gynecology, P.C., were entitled to summary judgment dismissing the complaint insofar asasserted against them. The movants' expert affirmation, in concluding that there was no departurefrom good and accepted medical practice and that, in any event, any departure was not aproximate cause of the infant plaintiff's injuries, was conclusory, failed to address conflictingevidence in the record, and was insufficient to refute allegations set forth in the plaintiffs'supplemental bill of particulars (seeWall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2010]; Kuri v Bhattacharya, 44 AD3d 718[2007]; see also Callahan vGuneratne, 78 AD3d 753, 754 [2010]). In light of this determination, it is unnecessary toreview the sufficiency of the plaintiffs' opposition papers (see Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]; Wall v Flushing Hosp. Med. Ctr., 78 AD3d at1045; LaVecchia v Bilello, 76AD3d 548, 548 [2010]; Castro vNew York City Health & Hosps. Corp., 74 AD3d 1005, 1007 [2010]).
Accordingly, the Supreme Court should have denied that branch of the movants' motionwhich was for summary judgment dismissing the complaint insofar as asserted against Golub andPort Jefferson Obstetrics & Gynecology, P.C. Skelos, J.P., Dickerson, Austin and Miller, JJ.,concur. [Prior Case History: 2010 NY Slip Op 33686(U).]