Damen v. North Shore University Hospital

262 A.D.2d 598, 691 N.Y.S.2d 893, 1999 N.Y. App. Div. LEXIS 7595

Opinion

—In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated December 8, 1997, as granted that branch of the motion of the defendants Bruce Javors, Suzanne Roland, and Sandra Shaw, and the now-deceased defendant, Roger A. Hyman, which was for summary judgment dismissing the complaint insofar as asserted against Roger A. Hyman.

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

The now-deceased defendant, Dr. Roger A. Hyman, established his entitlement to judgment as a matter of law, thus shifting the burden to the plaintiff's to demonstrate the existence of a triable issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 326-327). The plaintiffs failed to submit an affidavit from a medical expert to demonstrate that Dr. Hyman departed from accepted medical practice and that such departure was a proximate cause of the plaintiff Roberta Damen’s injuries. Counsel’s unsubstantiated assertions of malpractice were insufficient to raise a triable issue of fact (see, Alvarez v Prospect Hosp., supra; Fileccia v Massapequa Gen. Hosp., 99 AD2d 796, affd 63 NY2d 639). S. Miller, J. P., Joy, Goldstein and Schmidt, JJ., concur.