Deutsch v. Chaglassian

• Decision Date: 09 March 2010
• Citation: 896 N.Y.S.2d 431,71 A.D.3d 718,2010 N.Y. Slip Op. 01912
• Parties: Tali DEUTSCH, etc., et al., respondents,v.Mary CHAGLASSIAN, et al., defendants,Stephen Weiser, appellant.
• Court: New York Supreme Court — Appellate Division

71 A.D.3d 718
896 N.Y.S.2d 431
2010 N.Y. Slip Op. 01912

Tali DEUTSCH, etc., et al., respondents,
v.
Mary CHAGLASSIAN, et al., defendants,Stephen Weiser, appellant.

Supreme Court, Appellate Division, Second Department, New York.

March 9, 2010.

[896 N.Y.S.2d 432]

Charles X. Connick, PLLC, Mineola, N.Y. (Barbara Ann Myers of counsel), for appellant.Mark M. Basichas & Associates, P.C., New York, N.Y. (Aleksey Feygin of counsel), for respondents.WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, ARIEL E. BELEN, and SHERI S. ROMAN, JJ.

[71 A.D.3d 718] In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, etc., the defendant Stephen Weiser appeals from an order of the Supreme Court, Queens County (O'Donoghue, J.), dated May 26, 2009, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendant Stephen Weiser which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against him and substituting therefor a provision[71 A.D.3d 719] granting that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.

“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 departure was a proximate cause of injury or damage” ( Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617; see Flanagan v. Catskill Regional Med. Ctr., 65 A.D.3d 563, 565, 884 N.Y.S.2d 131; Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121). “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” ( Rebozo v. Wilen, 41 A.D.3d at 458, 838 N.Y.S.2d 121). In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

“General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's...