Berkey v. Emma

291 A.D.2d 517, 738 N.Y.S.2d 250, 2002 N.Y. App. Div. LEXIS 1997

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 2002
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendants New York Methodist Hospital sued herein as Methodist Hospital and Leonard J. Emma separately appeal from an order of the Supreme Court, Kings County (Levine, J.), dated December 20, 2000, which denied their respective motions for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

It is well settled that “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact * * * Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see, Alvarez v Prospect Hosp., 68 NY2d 320). Further, a failure to address the specific factual allegations of medical malpractice set forth in the plaintiffs’ bill of particulars precludes entitlement to judgment as a matter of law (see, Drago v King, 283 AD2d 603). Here, the defendants did not meet their burden, since their medical expert did not refute, or even address, the specific factual allegations of negligence asserted in the plaintiffs’ complaint and amended bill of particulars.

The remaining contentions of the appellant New York Methodist Hospital, sued herein as Methodist Hospital, are either unpreserved for appellate review or improperly raised for the first time in its reply brief (see, Morgan v New York City Hous. Auth., 255 AD2d 565). S. Miller, J.P., Luciano, Schmidt and Crane, JJ., concur.