O'Shea v. Buffalo Medical Group, P.C.

64 A.D.3d 1140, 882 N.Y.S.2d 619

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 2, 2009
• Status: Published

Opinions

Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 21, 2008 in a medical malpractice action. The order, insofar as appealed from, denied that part of defendants’ motion for summary judgment dismissing the complaint against defendant Blaze Sekovski, M.D.

It is hereby ordered that the order insofar as appealed from is reversed on the law without costs, the motion is granted in part, and the complaint against defendant Blaze Sekovski, M.D. is dismissed.

Memorandum: As limited by their brief, defendants appeal from an order insofar as it denied that part of their motion for summary judgment dismissing the complaint against Blaze Sekovski, M.D. (defendant) in this medical malpractice action. We agree with defendants that Supreme Court erred in denying that part of their motion. “On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (Murray v Hirsch, 58 AD3d 701, 702 [2009], lv denied 12 NY3d 709 [2009]). Here, defendants met their burden by submitting the affidavit of defendant establishing that his administration of a stress test to plaintiff Timothy D. O’Shea was consistent with the applicable standard of care (see generally Swezey v Montague Rehab & Pain Mgt., P.C., 59 AD3d 431, 433 [2009]; Kremer v Buffalo Gen. Hosp., 269 AD2d 744 [2000]). The burden then shifted to plaintiffs to raise triable issues of fact by submitting a physician’s affidavit both “ ‘attesting to a departure from accepted practice and containing the attesting [physician’s] opinion that the defendant’s omissions or departures were a competent producing cause of the injury’ ” (Mosezhnik v Berenstein, 33 AD3d 895, 896 [2006]; see Murray, 58 AD3d at 702-703; Poblocki v Todoro, 49 AD3d 1239 [2008]; Perro v Schappert, 47 AD3d 694 [2008]; DeCintio v Lawrence Hosp., 25 AD3d 320 [2006]; Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [2000], lv denied 95 NY2d 751 [2000]). We conclude that, although the affirmation of plaintiffs’ expert raises a triable issue of fact concerning a departure from accepted practice, the affirmation is merely conclusory with respect to the issue of proximate cause and thus is insufficient to defeat the motion insofar as it seeks summary judgment dismissing the complaint against defendant (see Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007]; Rebozo v Wilen, 41 AD3d 457, 459 [2007]; Mosezhnik, 33 AD3d at 897).

All concur except Green and Gorski, JJ., who dissent and vote to affirm in the following memorandum.