| Arocho v D. Kruger, P.A. |
| 2013 NY Slip Op 06535 [110 AD3d 749] |
| October 9, 2013 |
| Appellate Division, Second Department |
| Jonathan Arocho et al., as Coadministrators of the Estate ofJuan Arocho, Deceased, Appellants, v D. Kruger, P.A., et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnensheinand Diana Lawless of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffsappeal from an order of the Supreme Court, Kings County (Bunyan, J.), dated April 25,2012, which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
Juan Arocho, the plaintiffs' decedent, went to Coney Island Hospital on May 4, 2007,three days after stepping on a screw that became embedded in his foot. He stayed in thehospital for several hours and was treated with intravenous antibiotics. Upon hisdischarge from the hospital, he was given a prescription for oral antibiotics and directedto follow up the next day at the hospital's podiatry clinic. The record indicates that he didnot comply with the directive to follow up the next day. It was not until May 24, 2007,that he returned to the emergency room, complaining that his foot had gotten worse. Hewas diagnosed with a bone infection, and part of the third toe on his right foot had to beremoved. Arocho commenced this action, alleging that the hospital and Danielle Kruger,the physician's assistant who had initially examined him, had committed malpractice andwere negligent when they treated him on May 4, 2007. After Arocho died, theadministrators of his estate were substituted as plaintiffs. The defendants eventuallymoved for summary judgment dismissing the complaint, and the Supreme Court grantedthe motion.
The requisite elements of proof in a medical malpractice action are a deviation ordeparture from accepted standard of care and evidence that the deviation or departurewas a proximate cause of injury or damage (see Stukas v Streiter, 83 AD3d 18, 23 [2011]; Hamilton v Good Samaritan Hosp.of Suffern, N.Y., 73 AD3d 697, 698 [2010]). In order to establish prima facieentitlement to judgment as a matter of law, a defendant in a medical malpractice actionmust negate either of these two elements (see Stukas v Streiter, 83 AD3d at 24).The plaintiff may then defeat the motion by submitting proof raising a triable issue offact as to the element or elements on which the defendant has made its prima facieshowing (see id.). "General allegations of medical malpractice, merelyconclusory and unsupported by competent evidence tending to establish the essentialelements of medical malpractice, are insufficient to defeat defendant physician'ssummary judgment motion" (Alvarez v Prospect Hosp., 68 NY2d 320, 325[1986]).[*2]
Here, in support of their motion for summaryjudgment dismissing the complaint, the defendants submitted an expert affidavit thatestablished, prima facie, that their treatment of Arocho conformed to good and acceptedmedical practice (see Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73AD3d at 697; Dunn vKhan, 62 AD3d 828, 829 [2009]). In opposition, the plaintiffs failed to raise atriable issue of fact. Their expert's affirmation was merely conclusory as to whether thedefendants departed from good and accepted medical practices in their treatment ofArocho (see Hamilton v Good Samaritan Hosp. of Suffern, N.Y., 73 AD3d at698; Dunn v Khan, 62 AD3d at 830). Accordingly, the Supreme Court properlygranted the defendants' motion for summary judgment dismissing the complaint. Balkin,J.P., Leventhal, Austin and Roman, JJ., concur.