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Dellacona v. Dorf

Appellate Division of the Supreme Court of New York, Second Department
Mar 22, 2004
5 A.D.3d 625 (N.Y. App. Div. 2004)

Opinion

2003-02167.

Decided March 22, 2004.

In an action to recover damages for medical malpractice, etc., the defendant Franklin Hospital Medical Center appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Bucaria, J.), dated January 29, 2003, as denied its cross motion for summary judgment dismissing the complaint insofar as asserted against it.

Vincent D. McNamara, East Norwich, N.Y. (Karen J. Walsh of counsel), for appellant.

Before: DAVID S. RITTER, J.P., HOWARD MILLER, STEPHEN G. CRANE, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, with costs, the cross motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

In support of its cross motion for summary judgment dismissing the complaint insofar as asserted against it, the defendant Franklin Hospital Medical Center (hereinafter Franklin Hospital) made a prima facie showing of its entitlement to judgment as a matter of law ( see O'Shaughnessy v. Hines, 248 A.D.2d 687, 688). The burden then shifted to the plaintiffs to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit attesting to a departure from accepted practice and containing an opinion that Franklin Hospital's acts or omissions were a competent producing cause of the injury ( see Domaradzki v. Glen Cove Ob/Gyn Assocs., 242 A.D.2d 282). The conclusory affidavit of the plaintiffs' medical expert failed to differentiate between the acts and omissions of the different defendants and failed to demonstrate that any alleged departure of Franklin Hospital was a proximate cause of the injured plaintiff's injuries. This was insufficient to defeat summary judgment ( see Kaplan v. Hamilton Med. Assocs., 262 A.D.2d 609, 610; Yasin v. Manhattan Eye, Ear Throat Hosp., 254 A.D.2d 281, 283).

RITTER, J.P., H. MILLER, CRANE and COZIER, JJ., concur.


Summaries of

Dellacona v. Dorf

Appellate Division of the Supreme Court of New York, Second Department
Mar 22, 2004
5 A.D.3d 625 (N.Y. App. Div. 2004)
Case details for

Dellacona v. Dorf

Case Details

Full title:MICHAEL DELLACONA, ET AL., respondents, v. BARRY DORF, ETC., ET AL.…

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

Date published: Mar 22, 2004

Citations

5 A.D.3d 625 (N.Y. App. Div. 2004)
774 N.Y.S.2d 776

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