Gianfortune v. Brucato

204 A.D.2d 388, 614 N.Y.S.2d 190, 1994 N.Y. App. Div. LEXIS 4799

Opinion

—In an action to recover damages for medical malpractice, the defendant Salvatore Brucato appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ain, J.), dated July 14, 1992, as, upon reargument, adhered to its prior determination, in an order dated May 7, 1992, denying his motion for summary judgment dismissing the complaint insofar as it is asserted against him.

Ordered that the order dated July 14, 1992, is reversed insofar as appealed from, on the law, the motion of the defendant Salvatore Brucato for summary judgment dismissing the complaint insofar as it is asserted against him is granted, and the action against the remaining defendant is severed; and it is further,

Ordered that the order dated May 7, 1992, is amended accordingly; and it is further,

Ordered that the appellant is awarded one bill of costs.

Upon our review of the record, we find that the plaintiff has failed to raise a triable issue of fact sufficient to defeat the appellant’s motion for summary judgment dismissing the complaint insofar as it is asserted against him on the ground that his alleged departure from accepted medical practice was not a proximate cause of the plaintiffs injuries. There is no evidence in the record that meconium was present in the plaintiffs lungs after oxygen was administered to him, and such a fact is not fairly inferable from the evidence in this case (see, Cassano v Hagstrom, 5 NY2d 643). Miller, J. P., Altman, Goldstein and Florio, JJ., concur.