Chance v. Felder
Decision Date | 10 October 2006 |
Docket Number | 2005-01401.,2006-06231. |
Parties | YOLANDA CHANCE, Appellant, v. KENNETH S. FELDER, Defendant, and FRED GOTTLIEB, Respondent. |
Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the respondent.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
On a motion for summary judgment dismissing the complaint in a medical malpractice action, "the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Williams v Sahay, 12 AD3d 366, 368 [2004]; see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Johnson v Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 526 [2005]; Taylor v Nyack Hosp., 18 AD3d 537, 538 [2005]). Failure to make a prima facie showing requires denial of the motion, "regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., supra at 324; see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Drago v King, 283 AD2d 603, 603 [2001]). Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact (see Bertini v Columbia Presbyt. Med. Ctr., 279 AD2d 492, 493 [2001]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]).
Contrary to the plaintiff's contention, the expert affidavit submitted by the defendant Fred Gottlieb was sufficient to demonstrate his prima facie entitlement to summary judgment on the issue of whether the laser treatment he performed on the plaintiff's left eye on April 28, 2000, was the proximate cause of loss of vision in the eye. The expert's opinion had a factual foundation in the record and adequately addressed the allegations of the plaintiff's bill of particulars as to Gottlieb. Accordingly, the Supreme Court correctly determined that Gottlieb made a prima facie showing of entitlement to summary judgment on the issue of proximate cause (see Vogel v Deutsch, 16 AD3d 489, 489-490 [2005]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]; cf. Wasserman v Carella, 307 AD2d 225, 226 [2003]; Berkey v Emma, 291 AD2d 517, 518 [2002]; Cicolello v Limb, 216 AD2d 434, 434 [1995]).
In opposition to Gottlieb's prima facie showing, the plaintiff failed...
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Glicksman v. Rosenzweig, 2009 NY Slip Op 31698(U) (N.Y. Sup. Ct. 7/13/2009), 11770/07
...of any departure from good and accepted medical malpractice or that the plaintiff was not injured thereby.'" (Chance v. Felder, 33 A.D.3d 645, 823 N.Y.S.2d 172 (2d Dept, 2006) quoting Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664 (2d Dept,. 2004), citing Alvarez v. Prospect Hosp.,......
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Dunn v. Khan, 2007 NY Slip Op 33311(U) (N.Y. Sup. Ct. 9/28/2007), 6494-05.
...of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Chance v. Felder, 33 A.D.3d 645, 823 N.Y.S.2d 172 (2d Dept., 2006) (internal quotation marks and citation omitted); Hernandez-Vega v. Zwanger-Pesiri Radiology Group, 39 A.D.3d 710, 833 N......
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