| Carioscia v Welischar |
| 2015 NY Slip Op 00715 [124 AD3d 816] |
| January 28, 2015 |
| Appellate Division, Second Department |
[*1]
| Jessica Carioscia et al., Appellants, v JulieWelischar, M.D., et al., Defendants, and Megan Lochner, M.D., et al.,Respondents. |
Victor M. Serby, Woodmere, N.Y., for appellants.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, N.Y. (Lauren B. Bristol ofcounsel), for respondent Susan Fish.
Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), forrespondents Megan Lochner and Stony Brook Gynecology & Obstetrics, P.C., andfor defendant Julie Welischar.
In an action, inter alia, to recover damages for medical malpractice, the plaintiffsappeal from (1) so much of an order of the Supreme Court, Suffolk County (Garguilo,J.), dated November 21, 2012, as granted the motion of the defendant Susan Fish and thatbranch of the separate motion of the defendants Megan Lochner and Stony BrookGynecology & Obstetrics, P.C., which were for summary judgment dismissing thecomplaint insofar as asserted against them, and (2) a judgment of the same court enteredFebruary 20, 2014, which, upon the order, is in favor of those defendants and against theplaintiffs, dismissing the complaint insofar as asserted against those defendants. Thenotice of appeal from the order is deemed also to be a notice of appeal from the judgment(see CPLR 5501 [c]).
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately andfiling separate briefs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of judgment in the action (see Matter ofAho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order arebrought up for review and have been considered on the appeal from the judgment(see CPLR 5501 [a] [1]).
A defendant seeking summary judgment in a medical malpractice action has the[*2]burden of establishing, prima facie, that thedefendant did not depart from the applicable standard of care or that any such departurewas not a proximate cause of injury to the plaintiff (see Ahmed v Pannone, 116 AD3d 802, 805 [2014]; Stukas v Streiter, 83 AD3d18, 24 [2011]). In opposition, a plaintiff need only raise a triable issue of fact as tothe prima facie showing that the defendant made (see Ahmed v Pannone, 116AD3d at 805-806; Mitchell vGrace Plaza of Great Neck, Inc., 115 AD3d 819, 819 [2014]; Stukas vStreiter, 83 AD3d at 25). Here, the defendant Susan Fish, and the defendants MeganLochner and Stony Brook Gynecology & Obstetrics, P.C. (hereinafter SBGO),established, prima facie, that none of their alleged departures from the standard of care,singly or together, proximately caused the injuries allegedly sustained by the injuredplaintiff (see Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d at 820). Inopposition, the plaintiffs failed to raise a triable issue of fact on that issue. Specifically,the affirmation of their medical expert as to proximate cause was conclusory (see Giambona v Hines, 104AD3d 807, 810 [2013]; cf.Cafaro v Ceka, 120 AD3d 732, 733 [2014]). Accordingly, the Supreme Courtcorrectly granted Fish's motion and that branch of the separate motion of Lochner andSBGO which was for summary judgment dismissing the complaint insofar as assertedagainst them (see Reilly vCohen, 121 AD3d 961, 962 [2014]; Navarra v Four Winds Hospital-Westchester, 95 AD3d850, 851 [2012]).
The parties' remaining contentions either are without merit or need not be addressedin light of the foregoing. Balkin, J.P., Dickerson, Sgroi and Cohen, JJ., concur. [PriorCase History: 2012 NY Slip Op 32801(U).]