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Nwabude v. Sisters of Charity Health Care

Appellate Division of the Supreme Court of New York, Second Department
Oct 27, 2003
309 A.D.2d 909 (N.Y. App. Div. 2003)

Opinion

2003-01221, 2003-08607

Argued September 29, 2003.

October 27, 2003.

In an action to recover damages for medical malpractice, etc., the defendants Orlando Gonzales, Jr., and Orlando Gonzales, M.D., P.C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Richmond County (Maltese, J.), dated January 17, 2003, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them. The appeal brings up for review so much of an order of the same court dated March 7, 2003, as, upon reargument, adhered to the original determination ( see CPLR 5517[b]).

McAloon Friedman, P.C., New York, N.Y. (Timothy J. O'Shaughnessy of counsel), for appellants.

Gair, Gair, Conason, Steigman Mackauf, New York, N.Y. (Rhonda E. Kay and Jeffrey Bloom of counsel) for respondents.

Before: FRED T. SANTUCCI, J.P., SONDRA MILLER, GLORIA GOLDSTEIN, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the appeal from the order dated January 17, 2003, is dismissed, as that order was superseded by the order dated March 7, 2003, made upon reargument; and it is further,

ORDERED that the order dated March 7, 2003, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The plaintiff Patricia Nkechi Nwabude (hereinafter Nwabude) suffered an intracerebral bleed the day after she saw the defendant Dr. Orlando Gonzales, Jr., during her first postpartum appointment. Nwabude and her husband subsequently commenced this medical malpractice action against, among others, Dr. Gonzales, claiming that he failed to check her blood pressure during the appointment, and that such a test would have revealed that she had hypertension, which could have been treated and would have prevented her subsequent stroke. Dr. Gonzales and his professional corporation, Orlando Gonzales, M.D., P.C., moved for summary judgment, arguing that any negligence on his part was not the proximate cause of Nwabude's injuries. The Supreme Court denied the motion, and, upon reargument, adhered to its original determination. We affirm.

In support of a motion for summary judgment, the movant has the burden of establishing, prima facie, entitlement to judgment as a matter of law ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562). Upon a failure to make such a showing, the motion must be denied regardless of the sufficiency of the opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853). The affirmation of Gonzales's expert was insufficient to establish prima facie that any negligence on Gonzales's part was not a proximate cause of Nwabude's injury ( see Nangano v. Mount Sinai Hospital, 305 A.D.2d 473). Accordingly, the Supreme Court properly denied the motion for summary judgment.

The appellants' remaining contention is without merit.

SANTUCCI, J.P., S. MILLER, GOLDSTEIN and COZIER, JJ., concur.


Summaries of

Nwabude v. Sisters of Charity Health Care

Appellate Division of the Supreme Court of New York, Second Department
Oct 27, 2003
309 A.D.2d 909 (N.Y. App. Div. 2003)
Case details for

Nwabude v. Sisters of Charity Health Care

Case Details

Full title:PATRICIA NKECHI NWABUDE, ET AL., respondents, v. SISTERS OF CHARITY HEALTH…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 27, 2003

Citations

309 A.D.2d 909 (N.Y. App. Div. 2003)
766 N.Y.S.2d 119

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