| Monzon v Brown |
| 2015 NY Slip Op 06224 [130 AD3d 884] |
| July 22, 2015 |
| Appellate Division, Second Department |
[*1]
| Alexa Monzon, Appellant, v Suzanne Brown,Respondent. |
Pamela Gabiger, Poughkeepsie, N.Y., for appellant.
Meiselman, Packman, Nealon, Scialabba & Baker, P.C., White Plains, N.Y.(Donald J. Scialabba and Carolyn Ann Papp-Campbell of counsel), for respondent.
In an action to recover damages for medical malpractice, the plaintiff appeals froman order of the Supreme Court, Dutchess County (Rosa, J.), dated May 14, 2014, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
In September 2009, the plaintiff was injured in a motor vehicle accident. Beginningon October 2, 2009, she sought treatment for the injuries she sustained in the accidentfrom the defendant, a neurologist. In February 2010, the defendant informed the plaintiffthat she was "neurologically cleared to return to work" starting March 1, 2010. Theplaintiff never returned to her job, and her employment was terminated. The plaintiffcommenced this medical malpractice action alleging that the defendant's determinationthat she could return to work resulted in her employment being terminated. The SupremeCourt granted the defendant's motion for summary judgment dismissing thecomplaint.
The essential elements of a cause of action to recover damages for medicalmalpractice are a deviation or departure from accepted medical practice and evidence thatsuch departure was a proximate cause of injury (see Poter v Adams, 104 AD3d 925, 926 [2013]; Hayden v Gordon, 91 AD3d819, 820 [2012]). On a motion for summary judgment dismissing a cause of actionalleging medical malpractice, a defendant physician must make a prima facie showingthat there was no departure from good and accepted medical practice or that the plaintiffwas not injured thereby (see Poter v Adams, 104 AD3d at 926; Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]). Once a defendant has made such ashowing, the burden shifts to the plaintiff to "submit evidentiary facts or materials torebut the prima facie showing by the defendant physician" (Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]).
In support of her motion for summary judgment, the defendant submitted evidence,including her own affidavit and copies of the plaintiff's medical records, whichestablished, prima facie, that her determination that the plaintiff was neurologicallycleared to return to work starting [*2]March 1, 2010, wasnot a departure from good and accepted medical practice. In opposition, the plaintifffailed to raise a triable issue of fact. Accordingly, the Supreme Court properly grantedthe defendant's motion for summary judgment dismissing the complaint. Skelos, J.P.,Hall, Roman and Duffy, JJ., concur.