Apollo-Wallace v Finger

[*1] Apollo-Wallace v Finger 2005 NYSlipOp 50530(U) Decided on April 13, 2005 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 13, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: April 13, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., RIOS and BELEN, JJ.
2004-1105 K C

Rita Apollo-Wallace, Appellant,

against

Stephen Finger, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Prus, J.), entered March 12, 2004, granting defendant's motion for summary judgment, deemed (CPLR 5520 [c]) an appeal from the judgment of the same court, entered July 20, 2004, pursuant thereto, dismissing the action.

Judgment unanimously reversed without costs, order granting defendant's motion for summary judgment vacated, complaint reinstated and defendant's motion for summary judgment denied.

In this action for medical malpractice stemming from procedures defendant performed to repair plaintiff's earlobes, defendant failed to establish his entitlement to judgment as a matter of law, and therefore it was unnecessary to consider the sufficiency of plaintiff's opposition to the motion (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]). The affidavit of defendant's expert was conclusory and patently insufficient. The expert had not seen the condition of plaintiff's earlobes even in photographs, and cited his review of office notes, consisting of at most 40 words covering 6 visits, to support his conclusory statement that defendant's actions were in accordance with accepted medical standards. A bare allegation of this nature is insufficient to establish entitlement to judgment as a matter of law (see Allen v Blum, 212 AD2d 562 [1995]), and therefore, the burden never shifted to plaintiff to raise an issue of fact (see e.g. Winegrad, 64 NY2d at 853; Vincini v Insel, 1 AD3d 351 [2003]; Drago v King, 283 AD2d 603 [2001]). Accordingly, defendant's motion for summary [*2]judgment should have been denied.

Decision Date: April 13, 2005