Somwaru v. Nathan

Appellate Division of the Supreme Court of New York

Somwaru v. Nathan

271 A.D.2d 596, 706 N.Y.S.2d 446, 2000 N.Y. App. Div. LEXIS 4291

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 17, 2000

StatusPublished

This text of 271 A.D.2d 596 (Somwaru v. Nathan) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Somwaru v. Nathan, 271 A.D.2d 596, 706 N.Y.S.2d 446, 2000 N.Y. App. Div. LEXIS 4291 (N.Y. Ct. App. 2000).

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Opinion

—In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Albert Heyman appeals from an order of the Supreme Court, Queens County (Dye, J.), dated March 5, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

The appellant, a surgeon, assisted another surgeon in the performance of a laparoscopic procedure on the plaintiff Deomatee Somwaru (hereinafter the plaintiff). Although the appellant established that he removed his instruments from the plaintiffs body before any malpractice occurred, he nonetheless failed to demonstrate that he completely withdrew from participating in the procedure before the alleged malpractice. Indeed, his deposition testimony suggests the contrary. As the party moving for summary judgment, the burden was on the appellant to establish his entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Bank of N. Y. v Granat, 197 AD2d 653; Daliendo v Johnson, 147 AD2d 312, 317). Since the appellant failed to do so, his motion was properly denied (see, Winegrad v New York Univ. Med. Ctr., supra).

The appellant’s remaining contentions are without merit. Joy, J. P., Thompson, Krausman and Goldstein, JJ., concur.

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—In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Albert Heyman appeals from an order of the Supreme Court, Queens County (Dye, J.), dated March 5, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed, with costs.

The appellant, a surgeon, assisted another surgeon in the performance of a laparoscopic procedure on the plaintiff Deomatee Somwaru (hereinafter the plaintiff). Although the appellant established that he removed his instruments from the plaintiffs body before any malpractice occurred, he nonetheless failed to demonstrate that he completely withdrew from participating in the procedure before the alleged malpractice. Indeed, his deposition testimony suggests the contrary. As the party moving for summary judgment, the burden was on the appellant to establish his entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Bank of N. Y. v Granat, 197 AD2d 653; Daliendo v Johnson, 147 AD2d 312, 317). Since the appellant failed to do so, his motion was properly denied (see, Winegrad v New York Univ. Med. Ctr., supra).

The appellant’s remaining contentions are without merit. Joy, J. P., Thompson, Krausman and Goldstein, JJ., concur.

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Bluebook (online)

271 A.D.2d 596, 706 N.Y.S.2d 446, 2000 N.Y. App. Div. LEXIS 4291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/somwaru-v-nathan-nyappdiv-2000.

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