Brosnan v. Shafron

278 A.D.2d 442, 718 N.Y.S.2d 641, 2000 N.Y. App. Div. LEXIS 13847

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 26, 2000
• Status: Published

Opinion

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.

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 NY2d 851, 853; Wertheimer v Paley, 137 AD2d 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 AD2d 664, 665; Graber v Zwanger, 175 AD2d 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 AD2d 1028; Indelicato v Wyckoff Hgts. Hosp., supra; Gerner v Long Is. Jewish Hillside Med. Ctr., 203 AD2d 60, 61-62; Christopher v St. Vincent’s Hosp. & Med. Ctr., 121 AD2d 303, 305; Critelli v Long Is. Jewish-Hillside Med. Ctr., 115 AD2d 632). Accordingly, summary judgment was properly denied. S. Miller, J. P., McGinity, Luciano and Smith, JJ., concur.