| Duvidovich v George |
| 2014 NY Slip Op 07617 [122 AD3d 666] |
| November 12, 2014 |
| Appellate Division, Second Department |
[*1]
| Rudolph Duvidovich, Individually and as Administratorof the Estate of Polina Duvidovich, Deceased, Appellant, v Liziamma George,M.D., Defendant, and Helen Sogoloff, M.D., et al.,Respondents. |
Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin ofcounsel), for appellant.
Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G.Vizza and Kim B. Kirzner of counsel), for respondent Helen Sogoloff.
Geisler, Henninger & Fitzmaurice LLP, Mineola, N.Y. (TracyAbramson of counsel), for respondent New York Methodist Hospital.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffsappeal, as limited by their brief, from so much of an order of the Supreme Court, KingsCounty (Steinhardt, J.), dated December 5, 2011, as granted that branch of the motion ofthe defendant Helen Sogoloff which was for summary judgment dismissing thecomplaint insofar as asserted against her, and that branch of the separate motion of thedefendants Liziamma George and New York Methodist Hospital which was for summaryjudgment dismissing the complaint insofar as asserted against the defendant New YorkMethodist Hospital.
Ordered that the order is affirmed insofar as appealed from, with one bill ofcosts.
In order to establish a prima facie case of liability in a medical malpractice action, theplaintiff must show "(1) a deviation or departure from accepted medical practice, and (2)evidence that such departure was a proximate cause of injury" (DiMitri vMonsouri, 302 AD2d 420, 421 [2003]; see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d757, 758 [2008];Thompson v Orner, 36 AD3d 791, 791-792 [2007]). Thus, on a motion forsummary judgment dismissing the complaint in a medical malpractice action, thedefendant has the initial burden of establishing the absence of any departure from goodand accepted medical practice or that the plaintiff was not injured thereby (seeWexelbaum v Jean, 80 AD3d at 757; Roca v Perel, 51 AD3d at 758). Wheresuch a showing is made, the burden shifts to the plaintiff to produce evidentiary proof inadmissible form demonstrating the existence of a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). "General allegations that are conclusoryand unsupported by competent evidence tending to establish the essential elements ofmedical malpractice are insufficient to defeat summary judgment" (DiMitri vMonsouri, 302 AD2d at 421; see Alvarez v Prospect Hosp., 68 NY2d at 324;DeLaurentis v Orange RegionalMed. Ctr.-Horton Campus, 117 AD3d 774, 775 [2014]; Khosrova v Westermann, 109AD3d 965, 967 [2013]; Lifshitz v Beth Israel Med. Ctr.-Kings Highway Div., 7 AD3d759, 760 [2004]).
[*2] Here, in support ofthose branches of their respective motions which were for summary judgment dismissingthe complaint insofar as asserted against each of them, the defendants Helen Sogoloffand New York Methodist Hospital (hereinafter the hospital) submitted expertaffirmations that established, prima facie, that they did not depart from good andaccepted standards of medical practice in their treatment of the plaintiff's decedent, and,in any event, that any alleged departure was not a proximate cause of the decedent'sinjuries or her eventual death. In opposition, the plaintiff failed to raise a triable issue offact. Contrary to the plaintiff's contention, the medical expert's affidavit submitted inopposition to both motions was conclusory, speculative, and without basis in the record,and, therefore, was insufficient to raise a triable issue of fact (see Lynn G. vHugo, 96 NY2d 306, 310 [2001]; DeLaurentis v Orange Regional Med.Ctr.-Horton Campus, 117 AD3d at 775; Khosrova v Westermann, 109 AD3dat 967; Lifshitz v Beth Israel Med. Ctr.-Kings Highway Div., 7 AD3d at 760;DiMitri v Monsouri, 302 AD2d at 421).
Accordingly, the Supreme Court properly granted those branches of the separatemotions which were for summary judgment dismissing the complaint insofar as assertedagainst Sogoloff and the hospital. Rivera, J.P., Dickerson, Roman and Duffy, JJ.,concur.