| Mitchell v Grace Plaza of Great Neck, Inc. |
| 2014 NY Slip Op 01724 [115 AD3d 819] |
| March 19, 2014 |
| Appellate Division, Second Department |
| Bobby Mitchell, as Administrator of the Estate of ClaraMitchell, Deceased, Appellant, v Grace Plaza of Great Neck, Inc., et al.,Respondents. |
—[*1] Martin Clearwater & Bell LLP, New York, N.Y. (Stewart G. Milch and Joseph L.DeMarzo of counsel), for respondent Grace Plaza of Great Neck, Inc. Costello, Shea & Gaffney, LLP, New York, N.Y. (Paul E. Blutman and Margaret S.O'Connell of counsel), for respondent North Shore-Long Island Jewish Health Systems,Inc.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffappeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated May 24,2012, which granted the separate motions of the defendants for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the order is affirmed, with one bill of costs.
The requisite elements of proof in a medical malpractice action are a deviation ordeparture from the accepted standard of care and evidence that the deviation or departurewas a proximate cause of injury or damage (see Lau v Wan, 93 AD3d 763, 765 [2012]; Stukas v Streiter, 83 AD3d18, 23 [2011]; Castro vNew York City Health & Hosps. Corp., 74 AD3d 1005, 1006 [2010]; Deutsch v Chaglassian, 71AD3d 718, 719 [2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842[2008]). Accordingly, a defendant "moving for summary judgment dismissing acomplaint alleging medical malpractice must establish, prima facie, either that there wasno departure or that any departure was not a proximate cause of the plaintiff's injuries"(Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; see Williams v Bayley Seton Hosp., 112 AD3d 917, 917[2013]; Arocho v D. Kruger,P.A., 110 AD3d 749, 749 [2013]; Faicco v Golub, 91 AD3d 817, 818 [2012]; seegenerally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The plaintiff maythen defeat the motion by submitting proof raising a triable issue of fact as to the elementor elements on which the defendant has made its prima facie showing (see Stukas vStreiter, 83 AD3d at 24). "General allegations that are conclusory and unsupportedby competent evidence tending to establish the essential elements of medical malpracticeare insufficient to defeat summary judgment" (DiMitri v Monsouri, 302 AD2d420, 421 [2003]).
Here, in support of their respective motions for summary judgment dismissing thecomplaint insofar as asserted against each of them, the defendants submitted expertaffirmations that [*2]established, prima facie, that neitherdefendant departed from good and accepted standards of medical practice in theirtreatment of the decedent. In any event, both defendants established, prima facie, that anydeparture was not a proximate cause of the decedent's injuries or her eventual death, nora substantial factor in aggravating her pre-existing condition (see Arocho v D.Kruger, P.A., 110 AD3d at 749; Khosrova v Westermann, 109 AD3d 965, 966 [2013]; McKenzie v Clarke, 77 AD3d637, 638 [2010]; Sheenan-Conrades v Winifred Masterson Burke RehabilitationHosp., 51 AD3d 769, 770 [2008]). In opposition, the plaintiff failed to raise atriable issue of fact. Contrary to the plaintiff's contention, his medical expert's affidavit,submitted in opposition to both motions, was conclusory, speculative, and without basisin the record, and, therefore, it was insufficient to raise a triable issue of fact (seeKhosrova v Westermann, 109 AD3d at 967; Matos v Schwartz, 104 AD3d 650, 652 [2013]; DiGeronimo v Fuchs, 101AD3d 933, 936 [2012]; Lahara v Auteri, 97 AD3d 799, 799-800 [2012]).
Accordingly, the Supreme Court properly granted the defendants' separate motionsfor summary judgment dismissing the complaint insofar as asserted against each of them.Dillon, J.P., Hall, Austin and Sgroi, JJ., concur. [Prior Case History: 2012 NY SlipOp 31517(U).]