Neuman v. Greenstein
| Decision Date | 27 March 1984 |
| Citation | 99 A.D.2d 1018,473 N.Y.S.2d 806 |
| Parties | Tammy NEUMAN, as Administrator etc. of Emanuel Ehrlich, deceased, et al., Plaintiffs-Respondents, v. Adrian GREENSTEIN, M.D., et al., Defendants, and Vasilios Pratilas, M.D., Defendant-Appellant. |
| Court | New York Supreme Court — Appellate Division |
R.E. Eichen, Forest Hills, for defendant-appellant.
Before SANDLER, J.P., and ASCH, SILVERMAN, FEIN and ALEXANDER, JJ.
Order, Supreme Court, New York County, entered December 3, 1982, denying defendant Pratilas' motion for summary judgment, unanimously reversed on the law, without costs, the motion is granted and the complaint is dismissed as against that defendant.
Plaintiffs' decedent underwent an emergency operation in December 1978. He expired six days later; one of the causes of death was listed as pulmonary congestion.
Dr. Pratilas, who was not involved in any prior surgery or treatment of the decedent, was the attending anesthesiologist during the operation in question. In support of his motion for summary judgment, Dr. Pratilas stated that he "did not deviate from good and acceptable medical practices in administering anesthesia to the decedent". Such "expert opinion evidence" from a party defendant is not inappropriate here, and in fact requires some expert response from plaintiff on the question of alleged deviation from proper and approved medical practice (see McDermott v. Manhattan Eye, Ear & Throat Hospital, 15 N.Y.2d 20, 25, 255 N.Y.S.2d 65, 203 N.E.2d 469). The only response to Dr. Pratilas' summary judgment motion was an affirmation by plaintiffs' attorney which merely reviewed in general the law on summary judgment and incorporated by reference the verified bill of particulars.
Submission of a hearsay affirmation by counsel alone does not satisfy the requirement that a party opposing a motion for summary judgment, to which the movant would otherwise be entitled, demonstrate by admissible evidence the existence of a factual issue for trial (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718; Himber v. Pfizer Laboratories, 82 A.D.2d 776, 440 N.Y.S.2d 649). Where a medical malpractice defendant, in a motion for summary judgment, asserts that he performed the operation in accordance with accepted standards of medical practice, and thus should not have been named as a party defendant, the plaintiff must respond with rebutting medical evidence demonstrating a departure from...
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