| Gentile v McFarlane-Johansson |
| 2013 NY Slip Op 05044 [108 AD3d 499] |
| July 3, 2013 |
| Appellate Division, Second Department |
| Ella Gentile, Appellant, v Nina ImasiMcFarlane-Johansson et al., Respondents. |
—[*1] Vaslas Lepowsky Hauss & Danke, LLP, Staten Island, N.Y. (Kenneth M. Dalton ofcounsel), for respondents James Juh Shen and James Juh Shen, M.D., P.C. Garbarini & Scher, P.C. New York, N.Y. (Rita F. Aronov and William D. Buckley ofcounsel), for respondent Lawrence Bodenstein. Amabile & Erman, P.C. (James W. Tuffin, Islandia, N.Y., of counsel), forrespondents Nina Imasi McFarlane-Johansson, Brian David Giordano, Barbara AnnDavies, James Edward DiPoce, Janice Hwang, Yelena Zinovjevna Sheydina, and StatenIsland University Hospital.
In an action to recover damages for medical malpractice, etc., the plaintiff appealsfrom (1) an order of the Supreme Court, Richmond County (McMahon, J.), datedNovember 4, 2011, which granted the separate motions of the defendants James JuhShen and James Juh Shen, M.D., P.C., the defendant Lawrence Bodenstein, and thedefendants Nina Imasi McFarlane-Johansson, Brian David Giordano, Barbara AnnDavies, James Edward DiPoce, Janice Hwang, Yelena Zinovjevna Sheydina, and StatenIsland University Hospital which were for summary judgment dismissing the amendedcomplaint insofar as asserted against each of them, and (2) a judgment of the same courtentered November 15, 2011, which upon the order, is in favor of the defendants andagainst her, dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendants appearing separately andfiling separate briefs.
The appeal from the intermediate order dated must be dismissed because the right ofdirect appeal therefrom terminated with the entry of judgment in the action (seeMatter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from theorder are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).[*2]
In a medical malpractice action, the requisiteelements of proof are a deviation or departure from accepted community standards ofmedical care and evidence that such departure was a proximate cause of injury or damage(see Sukhraj v New York CityHealth & Hosps. Corp., 106 AD3d 809 [2013]; Wexelbaum v Jean, 80 AD3d756 [2011]). A defendant seeking summary judgment in a malpractice action bearsthe initial burden of establishing, prima facie, either that there was no departure from theapplicable standard of care or that any alleged departure did not proximately cause theplaintiff's injuries (see Swansonv Raju, 95 AD3d 1105, 1106 [2012]; Heller v Weinberg, 77 AD3d 622, 622-623 [2010]). Inopposition, the plaintiff must demonstrate the existence of a triable issue of fact as to theelements on which the defendant has met his or her initial burden (see Sukhraj v NewYork City Health & Hosps. Corp., 106 AD3d at 809; Swanson v Raju, 95AD3d at 1106; Stukas vStreiter, 83 AD3d 18, 23-24 [2011]).
Here, the moving defendants demonstrated their prima facie entitlement to judgmentas a matter of law through the affirmations of their respective experts, who opined thatthere were no departures from accepted practice in the treatment of the plaintiff'scondition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986];Wexelbaum v Jean, 80 AD3d at 757). In opposition, the plaintiff failed to raise atriable issue of fact. Skelos, J.P., Dickerson, Austin and Cohen, JJ., concur.