Kuri v. Bhattacharya

44 A.D.3d 718, 842 N.Y.S.2d 734

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 9, 2007
• Status: Published

Opinion

In an action to recover In an action to recoverdamages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Bellantoni, J.), entered November 21, 2006, which denied his motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

“The 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 . . . 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 [1985]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The defendant did not meet this burden since the conclusory statements set forth in the affirmation of his medical expert did not refute, or even address, the specific factual allegations of negligence made in the complaint and the original and supplemented bills of particulars (see Berkey v Emma, 291 AD2d 517 [2002]; Drago v King, 283 AD2d 603, 604 [2001]; Allen v Blum, 212 AD2d 562 [1995]; Indelicato v Wyckoff Hgts. Hosp., 205 AD2d 664 [1994]). The defendant’s motion for summary judgment was therefore properly denied regardless of the sufficiency of the plaintiffs’ opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Spolzino, J.P., Ritter, Dillon and Dickerson, JJ., concur.