Domaradzki v. Glen Cove Ob/Gyn Associates

• Decision Date: 11 August 1997
• Citation: 242 A.D.2d 282,660 N.Y.S.2d 739
• Parties: , 1997 N.Y. Slip Op. 7101 Sylvia DOMARADZKI, Respondent, v. GLEN COVE OB/GYN ASSOCIATES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 739

660 N.Y.S.2d 739

242 A.D.2d 282, 1997 N.Y. Slip Op. 7101

Sylvia DOMARADZKI, Respondent, v. GLEN COVE OB/GYN ASSOCIATES, Appellant.

Supreme Court, Appellate Division, Second Department.

Aug. 11, 1997.

Gallagher, Walker & Bianco, Stewart Manor (Robert J. Walker and Ann Willoughby, of counsel), for appellant.

Samuel E. Rieff, Garden City, for respondent.

Before BRACKEN, J.P., and COPERTINO, ALTMAN and FLORIO, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Nassau County (Dunne, J.), dated July 30, 1996, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

To oppose a motion for summary judgment dismissing a cause of action sounding in medical malpractice, a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury (see, Cerkvenik v. County of Westchester, 200 A.D.2d 703, 607 N.Y.S.2d 66; Caggiano v. Ross, 130 A.D.2d 538, 515 N.Y.S.2d 274; Amsler v. Verrilli, 119 A.D.2d 786, 501 N.Y.S.2d 411). Although the affidavit of the plaintiff's medical expert attested to a departure, it was devoid of any expression or opinion that the alleged departure was a competent producing cause of any injury or damage to the plaintiff. Accordingly, the cause of action alleging medical malpractice must be dismissed since the defendant met its initial burden of making out a prima facie case for summary judgment.

The plaintiff concedes that the remaining cause of action must be dismissed because it alleges lack of informed consent for a procedure that the defendant neither ordered nor performed (see, Shkolnik v. Hospital for Joint Diseases Orthopaedic Inst., 211 A.D.2d 347, 627 N.Y.S.2d 353; Spinosa v. Weinstein, 168 A.D.2d 32, 38, 571 N.Y.S.2d 747).