| Bowe v Brooklyn United Methodist Church Home |
| 2017 NY Slip Op 04093 [150 AD3d 1067] |
| May 24, 2017 |
| Appellate Division, Second Department |
[*1]
| Audrey Bowe, Individually and as Administrator of the Estate ofFatimah Bowe, Deceased, Plaintiff, v Brooklyn United Methodist Church Home et al.,Defendants, and Wyckoff Heights Medical Center, Defendant/Third-Party Plaintiff-Appellant.Syed A. Husain, M.D., Third-Party Defendant-Respondent. |
Arshack Hajek & Lehrman, PLLC, New York, NY (Lynn Hajek and Ria Rana ofcounsel), for defendant third-party plaintiff-appellant.
Albanese & Albanese, LLP (Mauro Lilling Naparty, LLP, Woodbury, NY [Caryn L.Lilling and Gregory A. Cascino], of counsel), for third-party defendant-respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant third-partyplaintiff appeals from an order of the Supreme Court, Kings County (Jacobson, J.), dated January12, 2015, which granted the third-party defendant's motion for summary judgment dismissing thethird-party complaint.
Ordered that the order is affirmed, with costs.
The plaintiff's decedent was a resident of the defendant Brooklyn United Methodist ChurchHome and, on several occasions prior to her death on April 2, 2008, was admitted to thedefendant third-party plaintiff Wyckoff Heights Medical Center (hereinafter Wyckoff) formedical treatment. The plaintiff commenced this action, alleging, among other things, that thedefendants failed to properly prevent and treat pressure ulcers that developed while the decedentwas admitted to Wyckoff. Wyckoff commenced a third-party action seeking indemnification andcontribution from the third-party defendant, Syed A. Husain, who was the decedent's primary andadmitting physician. Husain moved for summary judgment dismissing the third-party complaint,and the Supreme Court granted the motion. Wyckoff appeals.
"In order to establish the liability of a physician for medical malpractice, a plaintiff mustprove that the physician deviated or departed from accepted community standards of practice,and that such departure was a proximate cause of the plaintiff's injuries" (Stukas v Streiter, 83 AD3d 18, 23[2011]; see Swanson v Raju, 95AD3d 1105, 1106 [2012]; Heller vWeinberg, 77 AD3d 622 [2010]). A defendant physician seeking summary judgment ina malpractice action bears the initial burden of establishing, prima facie, either that there was nodeparture from good and accepted medical practice or that any alleged departure did notproximately cause the plaintiff's injuries (see Duvidovich v George, 122 AD3d 666, 666 [2014]; Swansonv Raju, 95 AD3d at 1106; Stukas v Streiter, 83 AD3d at 24). In opposition, theplaintiff must demonstrate the existence of a triable issue of fact as to the elements on which thedefendant has met his or her initial burden (see Swanson v Raju, 95 AD3d at 1106;[*2]Stukas v Streiter, 83 AD3d at 24). "Generalallegations of medical malpractice, merely conclusory and unsupported by competent evidencetending to establish the essential elements of medical malpractice, are insufficient to defeatdefendant physician's summary judgment motion" (Alvarez v Prospect Hosp., 68 NY2d320, 325 [1986]; see Duvidovich v George, 122 AD3d at 666-667).
Here, in support of his motion for summary judgment dismissing the third-party complaint,Husain submitted, inter alia, an expert affirmation that established, prima facie, that he did notdepart from good and accepted standards of medical practice in his treatment of the decedent, andthat, in any event, any alleged departure was not a proximate cause of the decedent's injuries orher eventual death. In opposition, Wyckoff failed to raise a triable issue of fact. Contrary toWyckoff's contention, its medical expert's affirmation submitted in opposition was conclusory,speculative, and without basis in the record with regard to the issue of Husain's departure fromgood and accepted standards of medical practice, and, in any event, failed to raise a triable issueof fact with regard to whether any alleged departure was a proximate cause of the decedent'sinjuries or eventual death (seeDuvidovich v George, 122 AD3d 666 [2014]; Berthen v Bania, 121 AD3d 732 [2014]; Ramsay v Good Samaritan Hosp., 24AD3d 645 [2005]).
Wyckoff's remaining contention is without merit.
Accordingly, the Supreme Court properly granted Husain's motion for summary judgmentdismissing the third-party complaint. Dillon, J.P., Austin, Hinds-Radix and Maltese, JJ.,concur.