Bjorke v. Ira Rubenstein

• Decision Date: 08 July 2008
• Docket Number: No. 2007-01253,2007-01253
• Citation: 861 N.Y.S.2d 757,53 A.D.3d 519,2008 NY Slip Op 6184
• Parties: VICKY BJORKE et al., Appellants-Respondents, v. IRA RUBENSTEIN et al., Defendants, JOSEPH YACOVONE et al., Respondents-Appellants, and JENNIFER WILKEN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

53 A.D.3d 519

861 N.Y.S.2d 757

2008 NY Slip Op 6184

VICKY BJORKE et al., Appellants-Respondents, v. IRA RUBENSTEIN et al., Defendants, JOSEPH YACOVONE et al., Respondents-Appellants, and JENNIFER WILKEN et al., Respondents.

No. 2007-01253

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided July 8, 2008.

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered January 3, 2007, as granted the motion of the defendant Jennifer Wilken, and the separate motion of the defendants Howard Karpoff and Orange Surgical Group, M.D., P.C., which were for summary judgment dismissing the complaint insofar as asserted against them, and the defendants Joseph Yacovone, Julie L. Barudin, and Horton Medical Center cross-appeal, as limited by their brief, from so much of the same order as denied their separate motions for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs payable by the plaintiffs to the defendants Jennifer Wilken, Howard Karpoff, and Orange Surgical Group, M.D., P.C., and one bill of costs payable by the defendants Joseph Yacovone, Julie L. Barudin, and Horton Medical Center to the plaintiffs.

"In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician was negligent" (Taylor v Nyack Hosp., 18 AD3d 537, 538 [2005]). "If the defendant makes its prima facie showing, then the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit attesting to a departure from accepted practice and containing an opinion that the defendant's acts or omissions were a competent producing cause of the injury" (Vera v Soohoo, 41 AD3d 586, 587 [2007]).

The defendants Jennifer Wilken, Howard Karpoff, and Orange Surgical Group, M.D., P.C. (hereinafter Orange), made a prima facie showing of their entitlement to judgment as a matter of law by demonstrating that they did not depart from the accepted standards of care (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Taylor v Nyack Hosp., 18 AD3d 537 [2005]). In opposition, the plaintiffs relied on affirmations of a radiologist which were of no probative...