Orsi v. Haralabatos

CourtNew York Supreme Court Appellate Division
Writing for the CourtWILLIAM F. MASTRO
Citation89 A.D.3d 997,934 N.Y.S.2d 195,2011 N.Y. Slip Op. 08570
Decision Date22 November 2011
PartiesKeith ORSI, etc., et al., respondents, v. Susan HARALABATOS, etc., et al., appellants, et al., defendants.

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.


[934 N.Y.S.2d 195]

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.

[89 A.D.3d 997] 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 [89 A.D.3d 998] Court, Suffolk County (Sweeney, J.), dated July 20, 2010, as denied their motion for summary judgment

[934 N.Y.S.2d 196]

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...

To continue reading

Request your trial
12 practice notes
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...296 A.D.2d 454, 744 N.Y.S.2d 899). Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the [934 N.Y.S.2d 195] defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) is denied. ORDERED that the order is reversed insofar as ap......
  • Rivers v. Birnbaum
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2012
    ...community standards of medical care and evidence that such departure was a proximate cause of injury or damage ( see Orsi v. Haralabatos, 89 A.D.3d 997, 998, 934 N.Y.S.2d 195,lv. granted18 N.Y.3d 809, 2012 WL 996903;Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617;El......
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • May 11, 2012
    ...A.D.3d 1104, 902 N.Y.S.2d 147 (2d Dept. 2010); Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585 (2d Dept. 2010); Orsi v. Haralabatos, 89 A.D.3d 997, 934 N.Y.S.2d 195 (2d Dept. 2011)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any de......
  • Montagnino v. Inamed Corp., No. 13532/07.
    • United States
    • United States State Supreme Court (New York)
    • May 9, 2012
    ...902 N.Y.S.2d 147 (2d Dept.2010); Dolan v. Halpern, 73 AD3d 1117, 902 N.Y.S.2d 585 (2d Dept.2010); Orsi v. Haralabatos, 89 AD3d 997, 934 N.Y.S.2d 195 (2d Dept.2011)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good an......
  • Request a trial to view additional results
12 cases
  • Landon v. Kroll Lab. Specialists, Inc.
    • United States
    • New York Supreme Court Appellate Division
    • November 22, 2011
    ...296 A.D.2d 454, 744 N.Y.S.2d 899). Accordingly, the order is reversed insofar as appealed from, on the law, and that branch of the [934 N.Y.S.2d 195] defendant's motion which was to dismiss the complaint pursuant to CPLR 3211(a)(7) is denied. ORDERED that the order is reversed insofar as ap......
  • Rivers v. Birnbaum
    • United States
    • New York Supreme Court Appellate Division
    • October 17, 2012
    ...community standards of medical care and evidence that such departure was a proximate cause of injury or damage ( see Orsi v. Haralabatos, 89 A.D.3d 997, 998, 934 N.Y.S.2d 195,lv. granted18 N.Y.3d 809, 2012 WL 996903;Geffner v. North Shore Univ. Hosp., 57 A.D.3d 839, 842, 871 N.Y.S.2d 617;El......
  • Montagnino v. Inamed Corp., INDEX NO. 13532/07
    • United States
    • United States State Supreme Court (New York)
    • May 11, 2012
    ...A.D.3d 1104, 902 N.Y.S.2d 147 (2d Dept. 2010); Dolan v. Halpern, 73 A.D.3d 1117, 902 N.Y.S.2d 585 (2d Dept. 2010); Orsi v. Haralabatos, 89 A.D.3d 997, 934 N.Y.S.2d 195 (2d Dept. 2011)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any de......
  • Montagnino v. Inamed Corp., No. 13532/07.
    • United States
    • United States State Supreme Court (New York)
    • May 9, 2012
    ...902 N.Y.S.2d 147 (2d Dept.2010); Dolan v. Halpern, 73 AD3d 1117, 902 N.Y.S.2d 585 (2d Dept.2010); Orsi v. Haralabatos, 89 AD3d 997, 934 N.Y.S.2d 195 (2d Dept.2011)). On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT