| Reiss v Sayegh |
| 2014 NY Slip Op 08619 [123 AD3d 787] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Gary Reiss et al., Respondents, v Neil J. Sayeghet al., Appellants. |
Pilkington & Leggett, P.C., White Plains, N.Y. (Michael N. Romano ofcounsel), for appellants.
Timothy G. Griffin, Bronxville, N.Y., for respondents.
In an action to recover damages for medical malpractice, etc., the defendants appealfrom an order of the Supreme Court, Westchester County (O. Bellantoni, J.), enteredAugust 28, 2013, which denied their motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
The plaintiff Gary Reiss (hereinafter the patient) allegedly sustained injuries to hisAchilles tendons as a result of being prescribed fluoroquinolone drugs by the defendants.The patient, and his wife suing derivatively, subsequently commenced this action torecover damages for medical malpractice. The defendants moved for summary judgmentdismissing the complaint. The Supreme Court denied the motion.
"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" (Faicco v Golub, 91AD3d 817, 818 [2012] [internal quotation marks omitted]; see Roca v Perel, 51 AD3d757, 758 [2008]; Furey vKraft, 27 AD3d 416, 417-418 [2006]). "A physician moving for summaryjudgment dismissing a complaint alleging medical malpractice must establish, primafacie, either that there was no [deviation or] departure or that any alleged [deviation or]departure was not a proximate cause of the plaintiff's injuries" (Garrett v University Assoc. inObstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]; see Faicco vGolub, 91 AD3d at 818; Stukas v Streiter, 83 AD3d 18, 24 [2011]). "Furthermore,bare allegations which do not refute the specific factual allegations of medicalmalpractice in the bill of particulars are insufficient to establish entitlement to judgmentas a matter of law" (Grant vHudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2008]; see Wall v Flushing Hosp. Med.Ctr., 78 AD3d 1043, 1045 [2010]; Terranova v Finklea, 45 AD3d 572 [2007]; Ward v Engel, 33 AD3d790, 791 [2006]).
The Supreme Court concluded that the defendants established their prima facieentitlement to judgment as a matter of law by demonstrating that they did not deviate ordepart from accepted medical practice, and that any deviation or departure was not theproximate cause of the patient's injuries in any event, but that the plaintiffs raised triableissues of fact in opposition. Although we agree with the Supreme Court that the motionshould have been denied, we conclude that the defendants failed to meet their prima facieburden of demonstrating that they did not deviate [*2]ordepart from accepted medical practice or that such deviation or departure was not aproximate cause of the patient's injuries. Among other deficiencies, the affirmation of thedefendants' expert relied upon a disputed fact (see Plato v Guneratne, 54 AD3d 741, 742 [2008];Muscatello v City of New York, 215 AD2d 463, 464 [1995]), specifically, thatthe plaintiff had not made any previous complaints about joint or tendon problemsarising from his use of fluoroquinolone drugs. Thus, the defendants' motion was properlydenied, regardless of the sufficiency of the plaintiffs' submissions (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Lormel v Macura, 113 AD3d734, 735-736 [2014]; Faicco v Golub, 91 AD3d at 818). Mastro, J.P.,Skelos, Roman and Maltese, JJ., concur.