Opinion
2014-03-19
Bobby MITCHELL, etc., appellant, v. GRACE PLAZA OF GREAT NECK, INC., et al., respondents.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Martin Clearwater & Bell LLP, New York, N.Y. (Stewart G. Milch and Joseph L. DeMarzo of counsel), for respondent Grace Plaza of Great Neck, Inc.
Sim & Record, LLP, Bayside, N.Y. (Sang J. Sim of counsel), for appellant. Martin Clearwater & Bell LLP, New York, N.Y. (Stewart G. Milch and Joseph L. DeMarzo of counsel), for respondent Grace Plaza of Great Neck, Inc.
Costello, Shea & Gaffney, LLP, New York, N.Y. (Paul E. Blutman and Margaret S. O'Connell of counsel), for respondent North Shore–Long Island Jewish Health Systems, Inc.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated May 24, 2012, which granted the separate motions of the defendants for summary judgment dismissing the complaint insofar as asserted against each of them.
ORDERED that the order is affirmed, with one bill of costs.
The requisite elements of proof in a medical malpractice action are a deviation or departure from the accepted standard of care and evidence that the deviation or departure was a proximate cause of injury or damage ( see Lau v. Wan, 93 A.D.3d 763, 765, 940 N.Y.S.2d 662;Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176;Castro v. New York City Health & Hosps. Corp., 74 A.D.3d 1005, 1006, 903 N.Y.S.2d 152;Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431;Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617). Accordingly, a defendant “moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries” ( Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148;see Williams v. Bayley Seton Hosp., 112 A.D.3d 917, 917, 977 N.Y.S.2d 395;Arocho v. D. Kruger, P.A., 110 A.D.3d 749, 749, 973 N.Y.S.2d 252;Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105;see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). The plaintiff may then defeat the motion by submitting proof raising a triable issue of fact as to the element or elements on which the defendant has made its prima facie showing ( see Stukas v. Streiter, 83 A.D.3d at 24, 918 N.Y.S.2d 176). “General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment” ( DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674).
Here, in support of their respective motions for summary judgment dismissing the complaint insofar as asserted against each of them, the defendants submitted expert affirmations that established, prima facie, that neither defendant departed from good and accepted standards of medical practice in their treatment of the decedent. In any event, both defendants established, prima facie, that any departure was not a proximate cause of the decedent's injuries or her eventual death, nor a substantial factor in aggravating her pre-existing condition ( see Arocho v. D. Kruger, P.A., 110 A.D.3d at 749, 973 N.Y.S.2d 252;Khosrova v. Westermann, 109 A.D.3d 965, 966, 971 N.Y.S.2d 565;McKenzie v. Clarke, 77 A.D.3d 637, 638, 908 N.Y.S.2d 370;Sheenan–Conrades v. Winifred Masterson Burke Rehabilitation Hosp., 51 A.D.3d 769, 770, 858 N.Y.S.2d 280). In opposition, the plaintiff failed to raise a triable issue of fact. Contrary to the plaintiff's contention, his medical expert's affidavit, submitted in opposition to both motions, was conclusory, speculative, and without basis in the record, and, therefore, it was insufficient to raise a triable issue of fact ( see Khosrova v. Westermann, 109 A.D.3d at 967, 971 N.Y.S.2d 565;Matos v. Schwartz, 104 A.D.3d 650, 652, 960 N.Y.S.2d 209;DiGeronimo v. Fuchs, 101 A.D.3d 933, 936, 957 N.Y.S.2d 167;Lahara v. Auteri, 97 A.D.3d 799, 799–800, 948 N.Y.S.2d 693).
Accordingly, the Supreme Court properly granted the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them. DILLON, J.P., HALL, AUSTIN and SGROI, JJ., concur.