| Cafaro v Ceka |
| 2014 NY Slip Op 05937 [120 AD3d 732] |
| August 27, 2014 |
| Appellate Division, Second Department |
[*1]
| Stacey M. Cafaro, Respondent, v Bari F. Cekaet al., Appellants, et al., Defendants. |
Amabile & Erman, P.C., Staten Island, N.Y. (Marc J. Falcone of counsel), forappellants.
Ameduri, Galante & Friscia, LLP, Staten Island, N.Y. (Marvin Ben-Aron ofcounsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantsBari F. Ceka, Tottenville Medical Pavillion, PLLC, Ralph J. Ciccone, and Staten IslandPulmonary Associates, P.C., appeal, as limited by their brief, from so much of an order ofthe Supreme Court, Richmond County (McMahon, J.), dated December 17, 2012, asdenied their motion for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendants Bari F. Ceka, Tottenville Medical Pavillion, PLLC,Ralph J. Ciccone, and Staten Island Pulmonary Associates, P.C., for summary judgmentdismissing the complaint insofar as asserted against them is granted.
The plaintiff is the administrator of the estate of the decedent, Janice Cafaro. Theplaintiff commenced this action alleging, inter alia, that the appellants failed to diagnoseand treat an obstruction of the decedent's common bile duct, and that this failure, alongwith hemorrhagic pancreatitis, ultimately caused the decedent's death. The appellantsmoved for summary judgment dismissing the complaint insofar as asserted against them.The Supreme Court, among other things, denied their motion, concluding that theplaintiff had raised a triable issue of fact in opposition to their prima facie establishmentof their entitlement to judgment as a matter of law.
On their motion for summary judgment dismissing the complaint in this medicalmalpractice action, the appellants were required to make a prima facie showing that therewas no departure from good and accepted medical practice, or that any claimed departurewas not the proximate cause of the decedent's injuries (see Stukas v Streiter, 83 AD3d18, 24 [2011]). To defeat the motion after the appellants made the necessary primafacie showing, the plaintiff was obligated to submit evidence sufficient to raise a triableissue of fact (see id. at 31).
Here, as the Supreme Court properly determined, the appellants satisfied their primafacie burden by establishing, through deposition testimony, medical records, and thedetailed and specific affirmation of their expert, that they did not depart from good andaccepted medical practice in their treatment of the decedent (see id. at 30-31).Contrary to the court's conclusion, however, [*2]theplaintiff failed to raise a triable issue of fact in opposition. The affirmation of theplaintiff's expert was conclusory and speculative (see Lahara v Auteri, 97 AD3d 799, 799-800 [2012]). In thisrespect, the plaintiff's expert failed to explain why the appellants should have suspected ablockage of the decedent's common bile duct while the decedent was in their care (see David v Hutchinson, 114AD3d 412, 413 [2014]). Moreover, to the extent that the opinion of the plaintiff'sexpert rested on an area of "haziness" depicted in a CT scan, the expert's opinion iswithout basis in the record (see Lahara v Auteri, 97 AD3d at 799-800), becausethe "haziness" related to a part of the decedent's abdomen different from that in which thecommon bile duct is situated. Since the plaintiff failed to raise a triable issue of fact, theSupreme Court should have granted the appellants' motion for summary judgmentdismissing the complaint insofar as asserted against them (see DiGeronimo v Fuchs, 101AD3d 933, 936 [2012]). Balkin, J.P., Austin, LaSalle and Barros, JJ., concur.