Menzel v. Plotnick

• Decision Date: 21 March 1994
• Citation: Menzel v. Plotnick, 610 N.Y.S.2d 50, 202 A.D.2d 558 (N.Y. App. Div. 1994)
• Parties: Aaron MENZEL, etc., et al., Respondents, v. Steven S. PLOTNICK, et al., Appellants, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 50

610 N.Y.S.2d 50

202 A.D.2d 558

Aaron MENZEL, etc., et al., Respondents, v.Steven S. PLOTNICK, et al., Appellants, et al., Defendants.

Supreme Court, Appellate Division Second Department.

March 21, 1994.

Farley, Holohan, Wagner & Doman, Mineola (Salvatore J. Leto, of counsel), for appellantSteven S. Plotnick.

Raymond J. Furey, P.C., Mitchel Field(Rosemary Cinquemani, of counsel), for appellant Nassau Hosp.

Spizz & Cooper, Mineola (Harvey W. Spizz, of counsel), for respondents.

Before MANGANO, P.J., and BRACKEN, BALLETTA and HART, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for medical malpractice, etc., the defendantsSteven S. Plotnick and Nassau Hospital appeal from an order of the Supreme Court, Nassau County(Levitt, J.), dated April 1, 1992, which denied their respective motions for summary judgment dismissing the complaint insofar as it is asserted against each of them.

ORDERED that the order is affirmed, with one bill of costs.

The Court of Appeals has stated that "the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact [and the][f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers"(Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;see, Yelin v. American Dental Ctr., 184 A.D.2d 693, 585 N.Y.S.2d 95).Here, the defendantSteven S. Plotnick failed to submit a sworn affidavit establishing his freedom from negligence.The letter/report from his expert to his attorneys was not sworn to, and, therefore, was not evidentiary material in admissible form and was without probative value (see, Simms v. North Shore Univ. Hosp., 192 A.D.2d 700, 597 N.Y.S.2d 113;see also, Daum v. Auburn Mem. Hosp., 198 A.D.2d 899, 604 N.Y.S.2d 449).His attorney's affirmation and remaining exhibits were insufficient to support his summary judgment motion(see, e.g., Schaefer v. Marchiano, 193 A.D.2d 664, 597 N.Y.S.2d 470).Accordingly, Plotnick never made a prima facie showing that he was entitled to summary judgment in the first place.

Although the defendant Nassau Hospital did submit an expert's affidavit, the well known general rule is that summary judgment will only be granted if there are no material and triable issues of fact (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387).Issue finding, as opposed to issue determination, is the key to summary judgment (see, Krupp v. Aetna Life & Cas. Co., 103 A.D.2d 252, 261, 479 N.Y.S.2d 992), and the court should refrain from resolving issues of credibility (see, S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 341, 357...