Cicolello v. Limb

Appellate Division of the Supreme Court of New York

Cicolello v. Limb

216 A.D.2d 434, 628 N.Y.S.2d 369, 1995 N.Y. App. Div. LEXIS 6467

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 19, 1995

StatusPublished

Cited by10 cases

This text of 216 A.D.2d 434 (Cicolello v. Limb) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cicolello v. Limb, 216 A.D.2d 434, 628 N.Y.S.2d 369, 1995 N.Y. App. Div. LEXIS 6467 (N.Y. Ct. App. 1995).

Pincite

Opinion

In an action to recover damages for medical malpractice, the defendants Jan Forszpaniak and Wyckoff Heights Hospital appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated January 31,' 1994, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Court of Appeals has stated that "the 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 demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The failure to proffer such evidence warrants a denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Muscatello v City of New York, 215 AD2d 463). Moreover, in a medical malpractice action such as the case at bar, the movant’s initial burden may not be satisfied by bare conclusory denials of malpractice without any factual relationship to the alleged injury (see, Winegrad v New York Univ. Med. Ctr., supra; Muscatello v City of New York, supra).

Applying these principles to the instant case, the appellants failed to sustain their burden of demonstrating their entitlement to judgment as a matter of law. Significantly, the appellants failed to submit any evidentiary proof establishing that Dr. Jan Forszpaniak properly performed his duties as surgical assistant and was free from negligence in the procedure performed upon the injured plaintiff. Furthermore, the affirmation of the appellants’ attorney and the accompanying exhibits, which consisted primarily of very brief excerpts of deposition testimony, were insufficient to support their motion for summary judgment (see, Menzel v Plotnick, 202 AD2d 558). Accordingly, the appellants did not make a prima facie showing that they were entitled to summary judgment, and the motion was properly denied.

The appellants’ remaining contention is without merit. O’Brien, J. P., Ritter, Copertino and Krausman, JJ., concur.

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In an action to recover damages for medical malpractice, the defendants Jan Forszpaniak and Wyckoff Heights Hospital appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Clemente, J.), dated January 31,' 1994, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed from, with costs.

The Court of Appeals has stated that "the 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 demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324). The failure to proffer such evidence warrants a denial of the motion, regardless of the sufficiency of the opposing papers (see, Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; Muscatello v City of New York, 215 AD2d 463). Moreover, in a medical malpractice action such as the case at bar, the movant’s initial burden may not be satisfied by bare conclusory denials of malpractice without any factual relationship to the alleged injury (see, Winegrad v New York Univ. Med. Ctr., supra; Muscatello v City of New York, supra).

Applying these principles to the instant case, the appellants failed to sustain their burden of demonstrating their entitlement to judgment as a matter of law. Significantly, the appellants failed to submit any evidentiary proof establishing that Dr. Jan Forszpaniak properly performed his duties as surgical assistant and was free from negligence in the procedure performed upon the injured plaintiff. Furthermore, the affirmation of the appellants’ attorney and the accompanying exhibits, which consisted primarily of very brief excerpts of deposition testimony, were insufficient to support their motion for summary judgment (see, Menzel v Plotnick, 202 AD2d 558). Accordingly, the appellants did not make a prima facie showing that they were entitled to summary judgment, and the motion was properly denied.

The appellants’ remaining contention is without merit. O’Brien, J. P., Ritter, Copertino and Krausman, JJ., concur.

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Bluebook (online)

216 A.D.2d 434, 628 N.Y.S.2d 369, 1995 N.Y. App. Div. LEXIS 6467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cicolello-v-limb-nyappdiv-1995.

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