| Gillespie v New York Hosp. Queens |
| 2012 NY Slip Op 04971 [96 AD3d 901] |
| June 20, 2012 |
| Appellate Division, Second Department |
| Kenneth E. Gillespie, Respondent, v New York HospitalQueens et al., Defendants, and William Sonstein, Appellant. |
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Friedman, Khafif & Sanchez, LLP, Brooklyn, N.Y. (Andrew M. Friedman of counsel), forrespondent.
In an action to recover damages for medical malpractice, the defendant William Sonsteinappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(O'Donoghue, J.), dated March 8, 2011, as denied his motion for summary judgment dismissingthe complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and themotion of the defendant William Sonstein for summary judgment dismissing the complaintinsofar as asserted against him is granted.
The plaintiff asserts, inter alia, that the defendant William Sonstein failed to diagnose andtreat a staph infection that he developed after undergoing a craniotomy. The plaintiff alleges thatSonstein's failure to diagnose and treat the infection allowed the infection to fulminate andultimately required the plaintiff to undergo surgical intervention. The plaintiff commenced thisaction against Sonstein and others alleging medical malpractice. In the order appealed from, theSupreme Court, inter alia, denied Sonstein's motion for summary judgment dismissing thecomplaint insofar as asserted against him. Sonstein appeals and we reverse the order insofar asappealed from.
"In order to establish the liability of a physician for medical malpractice, a plaintiff mustprove that the physician deviated or departed from accepted community standards of practice,and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23[2011]; see Caggiano v Cooling, 92AD3d 634 [2012]). A physician moving for summary judgment dismissing a complaintalleging medical malpractice must establish, prima facie, either that there was no departure orthat any departure was not a proximate cause of the plaintiff's injuries (see Faicco v Golub, 91 AD3d 817,818 [2012]; Stukas v Streiter, 83 AD3d at 24). Once a defendant physician has madesuch a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue offact (see Savage v Quinn, 91 AD3d748, 750 [2012]), but only as to the elements on which the defendant met the prima facieburden (see Stukas v Streiter, 83 AD3d at 30).
Here, Sonstein established his prima facie entitlement to judgment as a matter of law [*2]on the issues of deviation or departure from accepted communitystandards of medical practice and proximate cause. The plaintiff contends that, because Sonsteinincluded in support of his motion an affidavit which had been prepared by the plaintiff's expertwhich opined that Sonstein deviated from good and accepted standards of medical malpractice,and that those deviations proximately caused the plaintiff's injuries, Sonstein failed todemonstrate his prima facie entitlement to judgment as a matter of law. However, contrary to theplaintiff's contention, the plaintiff's expert's affidavit was insufficient to preclude the award ofsummary judgment (see Barnett vFashakin, 85 AD3d 832 [2011]). Sonstein demonstrated that the plaintiff's expert'saffidavit was conclusory (see generallySavage v Quinn, 91 AD3d 748 [2012]; Salvia v St. Catherine of Sienna Med. Ctr., 84 AD3d 1053 [2011]),and speculative (see generally Lau vWan, 93 AD3d 763 [2012]; Shister v City of New York, 63 AD3d 1032 [2009]).
In opposition, the plaintiff failed to raise a triable issue of fact. In this regard, the plaintiffsubmitted, inter alia, the same expert's affidavit which had previously been submitted bySonstein.
Accordingly, the Supreme Court should have granted Sonstein's motion for summaryjudgment dismissing the complaint insofar as asserted against him. Skelos, J.P., Balkin,Leventhal and Roman, JJ., concur.