Heller v. Weinberg

• Decision Date: 05 October 2010
• Citation: 77 A.D.3d 622,909 N.Y.S.2d 477
• Parties: Steven HELLER, etc., appellant, v. Jed Jacob WEINBERG, etc., et al., respondents.
• Court: New York Supreme Court — Appellate Division

909 N.Y.S.2d 477 77 A.D.3d 622 Steven HELLER, etc., appellant, v. Jed Jacob WEINBERG, etc., et al., respondents. Supreme Court, Appellate Division, Second Department, New York. Oct. 5, 2010.

Kramer, Dillof, Livingston & Moore, New York, N.Y. (Matthew Gaier and Norman Bard of counsel), for appellant.

Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G. Christesen of counsel), for respondents Jed Jacob Weinberg, West Carver Medical Associates, P.C., Paul K. Brodsky, and Alan Schuller.

Charles E. Kutner, LLP, New York, N.Y. (Patrick Mevs of counsel), for respondents Hollace Jackson and Hollace Jackson, M.D., F.A.C.O.G., P.C.

MARK C. DILLON, J.P., ANITA R. FLORIO, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for medical malpractice, etc., the plaintiff appeals from (1) an order of the Supreme Court, Suffolk County (Spinner, J.), dated August 10, 2009, which granted those branches of the motion of the defendants Jed Jacob Weinberg, West Carver Medical Associates, P.C., Paul K. Brodsky, and Alan Schuller, and the separate motion of the defendants Hollace Jackson and Hollace Jackson M.D., F.A.C.O.G., P.C., which were for summary judgment dismissing the complaint insofar as asserted against each of them, (2) a judgment of the same court entered September 23, 2009, which is in favor of the defendants Hollace Jackson, and Hollace Jackson, M.D., F.A.C.O.G., P.C., and against them, dismissing the complaint insofar as asserted against those defendants, and (3) a judgment of the same court entered October 28, 2009, which is in favor of the defendants Jed Jacob Weinberg, West Carver Medical Associates, P.C., Paul K. Brodsky, and Alan Schuller and against them, dismissing the complaint insofar as asserted against those defendants.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgments are affirmed; and it is further,

ORDERED that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgments in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeals from the judgments ( see CPLR 5501[a] [1] ).

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 ( see Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585; Anonymous v. Wyckoff Hgts. Med. Ctr., 73 A.D.3d 1104, 902 N.Y.S.2d 147; Dunn v. Khan, 62 A.D.3d 828, 829, 880 N.Y.S.2d 653; Rosen v. John J. Foley Skilled Nursing Facility, 45 A.D.3d 558, 559, 846 N.Y.S.2d 208). 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 theplaintiff was not injured thereby ( see Dolan v. Halpern, 73 A.D.3d at 1117, 902 N.Y.S.2d 585; Anonymous v. Wyckoff Hgts. Med. Ctr., 73 A.D.3d at 1104, 902 N.Y.S.2d 147; Murray v. Hirsch, 58 A.D.3d 701, 871 N.Y.S.2d 673; Shahid v. New York City Health & Hosps. Corp., 47 A.D.3d 800, 801, 850 N.Y.S.2d 519). "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" ( Deutsch v. Chaglassian, 71 A.D.3d 718, 896 N.Y.S.2d 431; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; ...