Castro v. N.Y. City Health and Hospitals Corp.

• Decision Date: 15 June 2010
• Citation: 74 A.D.3d 1005,903 N.Y.S.2d 152
• Parties: Julio C. CASTRO, etc., respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants, Cyrus O. McCalla, et al., appellants.
• Court: New York Supreme Court — Appellate Division

903 N.Y.S.2d 152 74 A.D.3d 1005 Julio C. CASTRO, etc., respondent, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., defendants, Cyrus O. McCalla, et al., appellants. Supreme Court, Appellate Division, Second Department, New York. June 15, 2010.

Brown & Tarantino, LLC, Buffalo, N.Y. (Ann M. Campbell and Katherine W. Dandy of counsel), for appellant Cyrus O. McCalla.

Kanterman O'Leary & Soscia, LLP, White Plains, N.Y. (Anthony Soscia and Robert M. Nash of counsel), for appellant Tak Kwan.

Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger, Uniondale, N.Y. (Gregory A. Cascino of counsel), for appellant Judith Mitchell.

Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier of counsel), for respondent.

WILLIAM F. MASTRO, J.P., JOSEPH COVELLO, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendants Cyrus O. McCalla, Tak Kwan, and Judith Mitchell separately appeal, as limited by their respective briefs, from so much of an order of the Supreme Court, Kings County (Jackson, J.), dated April 20, 2009, 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 from, with one bill of costs.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage ( see Deutsch v. Chaglassian, 71 A.D.3d 718, 719, 896 N.Y.S.2d 431; Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617). On a motion for summary judgment, a defendant physician has the burden of establishing the absence of any deviation or departure, or that the patient was not injured thereby ( see Deutsch v. Chaglassian, 71 A.D.3d at 719, 896 N.Y.S.2d 431; Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121). "In opposition, a plaintiff must submit evidentiary facts or materials to rebut the [defendant physician's] prima facie showing, so as to demonstrate the existence of a triable issue of fact" ( Deutsch v. Chaglassian, 71 A.D.3d at 719, 896 N.Y.S.2d 431, citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

Here, the defendant Cyrus O. McCalla, an obstetrician/perinatologist who treated the plaintiff's decedent, made a prima facie showing of his entitlement to judgment as a matter of law. McCalla's submissions, which included an expert's affirmation, established that he did not deviate or depart from accepted medical practice in his treatment of the plaintiff's decedent ( see Mendez v. City of New York, 295 A.D.2d 487, 488, 744 N.Y.S.2d 847).However, the expert's affirmation submitted by the plaintiff in opposition raised a triable...