Estate of Mollo v. Rothman

284 A.D.2d 299, 725 N.Y.S.2d 560, 2001 N.Y. App. Div. LEXIS 5647

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 4, 2001
• Status: Published

Opinion

—In an action to recover damages for medical malpractice and wrongful death, the plaintiff appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated March 30, 2000, which granted the motion of the defendant Ivan Rothman and the separate motion of the defendants David Kinne and Memorial Sloan-Kettering Cancer Center for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendants established through competent medical affidavits and deposition testimony that they did not contribute to or proximately cause the decedent’s death (see, Amsler v Verrilli, 119 AD2d 786). Thus, the Supreme Court properly determined that the defendants made a prima facie showing of entitlement to summary judgment.

The affidavit of the plaintiffs expert, submitted in opposition, failed to raise a triable issue of fact that the defendants’ omissions or departures were a competent producing cause of death (see, Yasin v Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281; Domaradzki v Glen Cove Ob / Gyn Assocs., 242 AD2d 282; Gross v Friedman, 138 AD2d 571, affd 73 NY2d 721). The affidavit contained only bare conclusory allegations and assumed material facts not supported by the evidence (see, Tucker v Elimelech, 184 AD2d 636). As the plaintiff failed to rebut the defendants’ prima facie showing of entitlement to summary judgment, the complaint was properly dismissed. Ritter, J. P., Friedmann, H. Miller and Crane, JJ., concur.