Graber v. Zwanger

175 A.D.2d 911, 573 N.Y.S.2d 749, 1991 N.Y. App. Div. LEXIS 11686

Opinion

— In an action, inter alia, to recover damages for medical malpractice, the defendants John Whittier and Jules Rozanski appeal from an order of the Supreme Court, Nassau County (Becker, J.), dated November 13, 1989, which denied their motion for summary judgment dismissing the complaint insofar as it was asserted against them.

Ordered that the order is affirmed, with costs.

The bare conclusory assertions by the movants that they did not deviate from good and accepted medical practices with respect to the treatment of the plaintiffs’ decedent, without any attempt to refute by specific factual reference the allegations of medical malpractice made in the bills of particulars, do not establish that the causes of action have no merit so as to entitle them to summary judgment (see, Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853; Alvarez v Prospect Hosp., 68 NY2d 320, 326). Failure to make such a prima facie showing requires a denial of the motion regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra). Fiber, J. P., Rosenblatt, Miller and Ritter, JJ., concur.