| Montagnino v Inamed Corp. |
| 2014 NY Slip Op 06185 [120 AD3d 1317] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Diane Montagnino et al., Appellants, v InamedCorporation et al., Defendants, and Alan R. Shons, M.D.,Respondent. |
Ralph G. Reiser, Syosset, N.Y., for appellants.
Costello, Shea & Gaffney, LLP, New York, N.Y. (Sylvia E. Lee of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the plaintiffs appealfrom an order of the Supreme Court, Nassau County (Parga, J.), entered May 11, 2012,which granted the motion of the defendant Alan R. Shons for summary judgmentdismissing the complaint insofar as asserted against him, denied their cross motion tostrike that defendant's answer or to preclude him from offering any expert evidence onthe ground of spoliation of evidence, and declined to search the record and award themsummary judgment on their causes of action alleging negligence, medical malpractice,and negligent spoliation of evidence insofar as asserted against that defendant.
Ordered that the order is affirmed, with costs.
The essential elements of medical malpractice are (1) a deviation or departure fromaccepted medical practice, and (2) evidence that such departure was a proximate cause ofinjury (see Schofield v EdwardB. Borden, M.D., P.C., 117 AD3d 936 [2014]; Mancuso v Friscia, 108 AD3d748 [2013]; Faicco vGolub, 91 AD3d 817, 818 [2012]; Roca v Perel, 51 AD3d 757, 758 [2008]; Furey v Kraft, 27 AD3d416, 417 [2006]). Accordingly, a physician moving for summary judgmentdismissing a cause of action alleging medical malpractice must establish, prima facie,either that there was no departure or that any departure was not a proximate cause of theplaintiff's injuries (see Fink vDeAngelis, 117 AD3d 894 [2014]; DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012]; Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; Garrett v University Assoc. in Obstetrics & Gynecology,P.C., 95 AD3d 823, 825 [2012]; Faicco v Golub, 91 AD3d 817 [2012]; Stukas v Streiter, 83 AD3d18, 24 [2011]). Once the defendant physician has established a prima facieentitlement to judgment as a matter of law, the burden then shifts to the plaintiff todemonstrate the existence of a triable issue of fact, but only as to the elements on whichthe defendant met his or her prima facie burden (see DiGeronimo v Fuchs, 101AD3d at 936; Savage vQuinn, 91 AD3d 748, 750 [2012]).
Here, the defendant Alan R. Shons established his prima facie entitlement tojudgment as a matter of law through the submission of his deposition testimony, theinjured plaintiff's medical and hospital records, and the affirmation of a medical expertstating that Shons did not deviate from the relevant standard of care in his treatment ofthe plaintiff. In opposition, the [*2]plaintiffs failed toraise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]).
The Supreme Court also properly declined to search the record and award theplaintiffs summary judgment on their causes of action alleging negligence, medicalmalpractice, and negligent spoliation of evidence. As to the negligence and medicalmalpractice causes of action, the plaintiffs failed to establish their prima facie entitlementto judgment as a matter of law (see Catalano v Tanner, 23 NY3d 976 [2014]; Valdes v Timberger, 41 AD3d836, 837 [2007]). With respect to the cause of action alleging negligent spoliation ofevidence, New York does not recognize an independent cause of action for damages forsuch a tort (see Ortega v City ofNew York, 9 NY3d 69 [2007]; Vargas v Crown Container Co., Inc., 114 AD3d 762[2014]; Hillman v Sinha, 77AD3d 887 [2010]). As to the applicability of the doctrine of res ipsa loquitor, theSupreme Court correctly determined that the doctrine was not applicable to this case (see Bucsko v Gordon, 118AD3d 653 [2014]).
The Supreme Court also properly denied the plaintiffs' cross motion to strike Shons'answer or to preclude him from offering any expert evidence on the ground of spoliationof evidence. The Supreme Court correctly found that the plaintiffs failed to sustain theirburden of demonstrating that these sanctions were warranted under the circumstances ofthis case (see Shay v Mozer,Inc., 80 AD3d 687, 688 [2011]; Utica Mut. Ins. Co. v Berkoski Oil Co., 58 AD3d 717, 718[2009]). Skelos, J.P., Hall, Duffy and Barros, JJ., concur. [Prior Case History: 35Misc 3d 1229(A), 2012 NY Slip Op 50924(U).]