Michael St. Aubrey v. Smithtown Pediatric Group, P.C.

31 A.D.3d 629, 819 N.Y.S.2d 80

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 18, 2006
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the defendants Smithtown Pediatric Group, P.C., and Harvey Bernstein appeal, as limited by their brief, from so much of an order of the Supreme Court, Suffolk County (Oliver, J.), dated October 14, 2004, as denied that branch of their motion, made jointly with the defendants Martin Hauptman and Stephan Paries, which was for summary judgment dismissing the complaint insofar as asserted against them, and the defendant Frederick Kaskel separately appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

The appellants, Smithtown Pediatric Group, PC., Harvey Bernstein, and Frederick Kaskel, each established, prima facie, entitlement to summary judgment dismissing the complaint insofar as asserted against them, thereby shifting the burden of proof to the plaintiffs “to show by sufficient evidentiary proof the existence of a triable factual issue” (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]).

We agree with the plaintiffs that the affirmation of their expert, a physician who is board certified in pediatrics, asserting that the appellants deviated from good and accepted medical practice, inter alia, in failing to take into account the infant plaintiffs malnourished state in the treatment of her electrolyte imbalance and that such deviation was a proximate cause of her injury, sufficed to raise a triable issue of fact (see Allone v University Hosp. of N.Y. Univ. Med. Ctr., 235 AD2d 447 [1997]). Adams, J.P., Goldstein, Luciano and Spolzino, JJ., concur.