| Bezerman v Bailine |
| 2012 NY Slip Op 03971 [95 AD3d 1153] |
| May 23, 2012 |
| Appellate Division, Second Department |
| Neil Bezerman, Appellant, v Sam Bailine et al.,Respondents. |
—[*1] Bartlett, McDonough, & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, AdonaidC. Medina, and Robert F. Elliott of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals froman order of the Supreme Court, Queens County (O'Donoghue, J.), dated December 15, 2010,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On a motion for summary judgment dismissing the complaint in a medical malpracticeaction, a defendant must make a prima facie showing that there was no departure from good andaccepted medical practice, or, if there was a departure, that the plaintiff was not injured thereby(see Salvia v St. Catherine of SiennaMed. Ctr., 84 AD3d 1053 [2011]; Ahmed v New York City Health & Hosps. Corp., 84 AD3d 709,710 [2011]; Stukas v Streiter, 83AD3d 18, 24-26 [2011]). Once a defendant physician has made such a showing, the burdenshifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing bythe defendant . . . so as to demonstrate the existence of a triable issue of fact"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Stukas v Streiter, 83AD3d at 24). General allegations that are conclusory and unsupported by competent evidencetending to establish the essential elements of medical malpractice are insufficient to defeat adefendant's motion for summary judgment (see Salvia v St. Catherine of Sienna Med.Ctr., 84 AD3d at 1054; Ahmed v New York City Health & Hosps. Corp., 84 AD3d at711).
Here, the defendants demonstrated their prima facie entitlement to judgment as a matter oflaw by submitting evidence establishing that there was no departure from good and acceptedpractice by the defendants and that, in any event, any departure was not a proximate cause of thealleged injuries (see Stukas vStreiter, 83 AD3d 18 [2011]; Breland v Jamaica Hosp. Med. Ctr., 49 AD3d 789 [2008];DiMitri v Monsouri, 302 AD2d 420 [2003]). In opposition to the defendants' prima facieshowing, the plaintiff's submissions, including the affidavit of the plaintiff's expert, failed to raisea triable issue of fact as to whether any alleged departure was the proximate cause of the allegedinjuries (see Orsi v Haralabatos, 89AD3d 997 [2011], lv granted 18 NY3d 809 [2012]; Graziano v Cooling, 79 AD3d 803[2010]; Wilkins v Khoury, 72 AD3d1067 [2010]).[*2]
Moreover, in opposition to the defendants' prima facieshowing of entitlement to judgment as a matter of law dismissing the cause of action sounding inlack of informed consent, the plaintiff failed to raise a triable issue of fact. Thus, the defendantsalso were entitled to summary judgment dismissing that cause of action (see Graziano v Cooling, 79 AD3d803 [2010]; Wilkins v Khoury,72 AD3d 1067 [2010]; Thompson vOrner, 36 AD3d 791 [2007]; Viola v Blanco, 1 AD3d 506 [2003]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Dillon, J.P., Leventhal, Hall and Austin, JJ., concur.