Drago v. King

283 A.D.2d 603, 725 N.Y.S.2d 859, 2001 N.Y. App. Div. LEXIS 5489

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 29, 2001
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Central General Hospital appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), entered June 14, 2000, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

Ordered that the order is affirmed, with 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 issues of fact from the case * * * 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, 324; Allen v Blum, 212 AD2d 562; Indelicato v Wyckoff Hgts. Hosp., 205 AD2d 664). Furthermore, bare allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law (see, Allen v Blum, supra; Indelicato v Wyckoff Hgts. Hosp., supra). Here, the Supreme Court correctly determined that the appellant did not meet its burden, since its medical experts did not refute, or even address, the specific factual allegations of negligence asserted in the plaintiffs’ supplemental bill of particulars. Accordingly, the motion for summary judgment was properly denied.

The appellant’s remaining contentions are without merit. Ritter, J. P., Friedmann, McGinity and H. Miller, JJ., concur.