Everett Bowman v Dean Chasky

Bowman v Chasky 2006 NY Slip Op 04978 [30 AD3d 552] Decided on June 20, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 20, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
FRED T. SANTUCCI
WILLIAM F. MASTRO
STEVEN W. FISHER, JJ.
2005-04511 DECISION & ORDER

[*1]Everett Bowman, et al., respondents,

v

Dean Chasky, defendants, Mount Sinai Hospital Medical Center, appellant. (Index No. 26120/01)




Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, N.Y.
(Steven J. Ahmuty, Jr., Robert M. Ortiz, and Christopher
Simone of counsel), for appellant.
Rheingold, Valet, Rheingold, Shkolnik & McCartney, LLP,
New York, N.Y. (Simcha D.
Schonfeld of counsel), for respondents.

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Mount Sinai Hospital Medical Center appeals, as limited by its brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated March 24, 2005, as denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

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

"In a medical malpractice action, a plaintiff, in opposition to a [defendant's] summary judgment motion, must submit evidentiary facts or materials to rebut the prima facie showing by the defendant . . . that [it] was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324; see DiMitri v Monsouri, 302 AD2d 420). "General allegations that are conclusory and unsupported are insufficient to defeat summary judgment" (Jonassen v Staten Is. Univ. Hosp., 22 AD3d 805, 806; see Alvarez v Prospect Hosp., supra at 324). [*2]

The defendant Mount Sinai Hospital Medical Center (hereinafter Mount Sinai) demonstrated through, inter alia, medical records and the affidavits of an expert witness, its prima facie entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiffs to raise a triable issue of fact in opposition to the motion (see Zuckerman v City of New York, 49 NY2d 557, 562). The plaintiffs failed to sustain their burden, since their submissions were insufficient to raise a triable issue of fact as to whether any alleged malpractice on the part of Mount Sinai was a proximate cause of the injured plaintiff's condition (see Jonassen v Staten Is. Univ. Hosp., supra; Margolese v Uribe, 238 AD2d 164). In this regard, the unsupported and conclusory allegations of the plaintiffs' medical expert were inadequate to withstand the motion, and Mount Sinai was entitled to summary judgment dismissing the complaint insofar as asserted against it (see Candia v Estepan, 289 AD2d 38; Burt v Lenox Hill Hosp., 141 AD2d 378).
FLORIO, J.P., SANTUCCI, MASTRO and FISHER, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court