Brosnan
v.
Shafron

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Second DepartmentDec 27, 2000
718 N.Y.S.2d 641 (N.Y. App. Div. 2000)
718 N.Y.S.2d 641278 A.D.2d 442

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Submitted December 6, 2000.

December 27, 2000.

In an action to recover damages for medical malpractice, the defendant Staten Island University Hospital appeals from an order of the Supreme Court, Richmond County (J. Leone, J.), dated January 18, 2000, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Martin, Clearwater Bell, New York, N.Y. (Nancy A. Breslow of counsel), for appellant.

Wingate, Russotti Shapiro, LLP, New York, N.Y. (Herman S. Steinberg of counsel), for respondent.

Before: SONDRA MILLER, J.P., LEO F. McGINITY, DANIEL F. LUCIANO, NANCY E. SMITH, JJ.


DECISION ORDER

ORDERED that the order is affirmed, with costs.

The appellant failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Wertheimer v. Paley, 137 A.D.2d 680). The evidence presented by the appellant was insufficient to establish that it was not liable for the alleged negligent acts of its employees. The affidavit of its medical expert was conclusory and did not attempt to refute by specific factual reference the allegations of negligence in the bills of particulars (see, Winegrad v. New York Univ. Med. Ctr., supra; Indelicato v. Wyckoff Hgts. Hosp., 205 A.D.2d 664, 665; Graber v. Zwanger, 175 A.D.2d 911). Additionally the deposition testimony presented by the appellant failed to establish that its employees did not deviate from accepted nursing practice (see, Barnes v. Sheehan Mem. Hosp., 275 A.D.2d 1028; Indelicato v. Wyckoff Hgts. Hosp., supra; Gerner v. Long Is. Jewish Hillside Med. Ctr., 203 A.D.2d 60, 61-62; Christopher v. St. Vincent's Hosp. Med. Ctr., 121 A.D.2d 303, 305; Critelli v. Long Is. Jewish-Hillside Med. Ctr., 115 A.D.2d 632). Accordingly, summary judgment was properly denied.