Holbrook v. United Hosp. Medical Center

• Decision Date: 02 March 1998
• Citation: 248 A.D.2d 358,669 N.Y.S.2d 631
• Parties: , 1998 N.Y. Slip Op. 1823 Laurie HOLBROOK, Respondent, v. UNITED HOSPITAL MEDICAL CENTER, Defendant, Mordecai Dicker, etc., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 631

669 N.Y.S.2d 631

248 A.D.2d 358, 1998 N.Y. Slip Op. 1823

Laurie HOLBROOK, Respondent, v. UNITED HOSPITAL MEDICAL CENTER, Defendant Mordecai Dicker, etc., et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 2, 1998.

MacCartney, MacCartney, Kerrigan & MacCartney, Nyack (Harold Y. MacCartney, Jr., of counsel), for appellants.

Tanzman & Cerbone, White Plains (C. Scott Amann, of counsel), for respondent.

Before THOMPSON, J.P., and JOY, FLORIO and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for medical malpractice, the defendants Mordecai Dicker, Spectrum Emergency Care, Inc., and Cooper Emergency Services of New York, P.C., appeal from so much of an order of the Supreme Court, Westchester County (Lefkowitz, J.), entered July 2, 1997, as denied that branch of their motion which was for summary judgment dismissing the action insofar as asserted against the defendant Mordecai Dicker.

ORDERED that the appeals by the defendants Spectrum Emergency Care, Inc., and Cooper Emergency Services of New York, P.C., are dismissed, as they are not aggrieved by the portion of the order from which the appeal is taken; and it is further,

ORDERED that the order is reversed insofar as appealed from by the appellant Mordecai Dicker, on the law, with costs, that branch of the motion which was for summary judgment dismissing the action insofar as asserted against the defendant Mordecai Dicker is granted, the complaint is dismissed insofar as it is asserted against that defendant, and the action against the remaining defendant, United Hospital Medical Center, is severed.

It is well established that:

"In a medical malpractice action, a plaintiff, in opposition to a motion of a defendant physician for summary judgment, must submit evidentiary facts or materials to rebut a prima facie showing by the defendant that he was not negligent in treating the plaintiff so as to demonstrate the existence of a triable issue of fact (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572; Fileccia v. Massapequa Gen. Hosp., 63 N.Y.2d 639, 479 N.Y.S.2d 520, 468 N.E.2d 702; Toledo v. Ordway, 208 A.D.2d 518, 616 N.Y.S.2d 1006). General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat a defendant physician's entitlement to summary judgment (see, Alvarez...