Doyle v. Health Care Plan, Inc.

Appellate Division of the Supreme Court of New York

Doyle v. Health Care Plan, Inc.

245 A.D.2d 1018, 666 N.Y.S.2d 60, 1997 N.Y. App. Div. LEXIS 13757

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

DecidedDecember 31, 1997

StatusPublished

Cited by2 cases

This text of 245 A.D.2d 1018 (Doyle v. Health Care Plan, Inc.) 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

Doyle v. Health Care Plan, Inc., 245 A.D.2d 1018, 666 N.Y.S.2d 60, 1997 N.Y. App. Div. LEXIS 13757 (N.Y. Ct. App. 1997).

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Opinion

—Order unanimously reversed on the law without costs, motion granted and complaint against Bahram Chubineh, M.D., dismissed. Memorandum: Supreme Court erred in denying the motion of Bahram Chubineh, M.D. (defendant), for summary judgment dismissing the complaint against him in this action for medical malpractice. The complaint alleged that defendant was negligent in reading and interpreting X-rays of plaintiffs decedent. In support of his motion, defendant submitted his affidavit and the affidavit of a medical expert stating that defendant’s examination of the X-rays was in accordance with good and accepted practice in the field of radiology. Those affidavits established defendant’s entitlement to summary judgment as a matter of law and shifted the burden to plaintiff to come forward with expert medical proof sufficient to establish the existence of a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-327; Santangelo v Crouse Med. Group, 209 AD2d 942, appeal dismissed 85 NY2d 905; Groeger v Col-Les Orthopedic Assocs., 149 AD2d 973). The only expert medical proof submitted by plaintiff, however, was an unsworn report from a medical expert, which does not constitute proof in admissible form (see, Grasso v Angerami, 79 NY2d 813, 814; Lough v City of Syracuse, 191 AD2d 1018, 1019; Rohr v Hoyt, 159 AD2d 980). Absent any expert medical proof in admissible form sufficient to establish a triable issue of fact, defendant was entitled to summary judgment (see, Fileccia v Massapequa Gen. Hosp., 99 AD2d 796, affd 63 NY2d 639; Santangelo v Crouse Med. Group, supra). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Green, J. P., Law-ton, Hayes, Callahan and Fallon, JJ.

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—Order unanimously reversed on the law without costs, motion granted and complaint against Bahram Chubineh, M.D., dismissed. Memorandum: Supreme Court erred in denying the motion of Bahram Chubineh, M.D. (defendant), for summary judgment dismissing the complaint against him in this action for medical malpractice. The complaint alleged that defendant was negligent in reading and interpreting X-rays of plaintiffs decedent. In support of his motion, defendant submitted his affidavit and the affidavit of a medical expert stating that defendant’s examination of the X-rays was in accordance with good and accepted practice in the field of radiology. Those affidavits established defendant’s entitlement to summary judgment as a matter of law and shifted the burden to plaintiff to come forward with expert medical proof sufficient to establish the existence of a material issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-327; Santangelo v Crouse Med. Group, 209 AD2d 942, appeal dismissed 85 NY2d 905; Groeger v Col-Les Orthopedic Assocs., 149 AD2d 973). The only expert medical proof submitted by plaintiff, however, was an unsworn report from a medical expert, which does not constitute proof in admissible form (see, Grasso v Angerami, 79 NY2d 813, 814; Lough v City of Syracuse, 191 AD2d 1018, 1019; Rohr v Hoyt, 159 AD2d 980). Absent any expert medical proof in admissible form sufficient to establish a triable issue of fact, defendant was entitled to summary judgment (see, Fileccia v Massapequa Gen. Hosp., 99 AD2d 796, affd 63 NY2d 639; Santangelo v Crouse Med. Group, supra). (Appeal from Order of Supreme Court, Erie County, Mintz, J.—Summary Judgment.) Present—Green, J. P., Law-ton, Hayes, Callahan and Fallon, JJ.

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Bluebook (online)

245 A.D.2d 1018, 666 N.Y.S.2d 60, 1997 N.Y. App. Div. LEXIS 13757, Counsel Stack Legal Research, https://law.counselstack.com/opinion/doyle-v-health-care-plan-inc-nyappdiv-1997.

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