Orsi v. Haralabatos

• Citation: 89 A.D.3d 997,934 N.Y.S.2d 195,2011 N.Y. Slip Op. 08570
• Parties: Keith ORSI, etc., et al., respondents, v. Susan HARALABATOS, etc., et al., appellants, et al., defendants.
• Decision Date: 22 November 2011
• Court: New York Supreme Court Appellate Division

2011 N.Y. Slip Op. 08570

89 A.D.3d 997

934 N.Y.S.2d 195

Keith ORSI, etc., et al., respondents,

v.Susan HARALABATOS, etc., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 22, 2011.

Phillips Lytle LLP, New York, N.Y. (Eric M. Kraus and Craig R. Bucki of counsel), for appellants.

Silberstein, Awad & Miklos, P.C., Garden City, N.Y. (Joseph C. Muzio and Dana E. Heitz of counsel), for respondents.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, SANDRA L. SGROI, and ROBERT J. MILLER, JJ.

In an action to recover damages for medical malpractice, etc., the defendants Susan Haralabatos and Stony Brook Orthopaedic Associates appeal from so much of an order of the Supreme Court, Suffolk County (Sweeney, J.), dated July 20, 2010, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Susan Haralabatos and Stony Brook Orthopaedic Associates for summary judgment dismissing the complaint insofar as asserted against them is granted.

“ ‘The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury’ ” ( Barnett v. Fashakin, 85 A.D.3d 832, 834, 925 N.Y.S.2d 168, quoting DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674; see Guzzi v. Gewirtz, 82 A.D.3d 838, 918 N.Y.S.2d 552). Thus, on a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant health care provider has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ( see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161; Rebozo v. Wilen, 41 A.D.3d 457, 458, 838 N.Y.S.2d 121). “[T]o defeat summary judgment, the nonmoving party need only raise a triable issue of fact with respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's prima facie showing” ( Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176).

In support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the defendants Susan Haralabatos and her employer, Stony Brook Orthopaedic Associates (hereinafter together the defendants), submitted affirmations from expert physicians that were sufficient to establish, prima facie, that the post-operative care received by the injured plaintiff following repair of a bone fracture...