Sheridan v. Bieniewicz, 2003-04042.
| Citation | 2004 NY Slip Op 03545,7 A.D.3d 508,776 N.Y.S.2d 318 |
| Decision Date | 03 May 2004 |
| Docket Number | 2003-04042. |
| Parties | DIANE E. SHERIDAN ET AL., Respondents, v. EDWARD BIENIEWICZ, Appellant, ET AL., Defendant. |
| Court | New York Supreme Court Appellate Division |
Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the appellant's motion which was for summary judgment dismissing the plaintiff Diane Elizabeth Sheridan's claim that the alleged malpractice caused that plaintiff's infertility is granted, and that claim is dismissed insofar as asserted against the appellant.
In November 1995, the plaintiff Diane Elizabeth Sheridan (hereinafter the plaintiff) underwent a surgical procedure to remove her gallbladder, which was performed by the defendant Edward Bieniewicz. The procedure resulted in complications associated with a bile leak, which lengthened the plaintiff's initial hospital stay and led to additional hospital admissions in 1995. The instant action was commenced in February 1998. In October 1999, the plaintiff was diagnosed with infertility, and in a supplemental bill of particulars filed in March 2001, she claimed that Bieniewicz's malpractice proximately caused her infertility.
Bieniewicz subsequently moved for summary judgment dismissing the complaint insofar as asserted against him, which motion was denied by the Supreme Court. On appeal, Bieniewicz does not dispute the existence of triable issues of fact regarding his alleged malpractice, but contends that the plaintiff failed to raise a triable issue of fact regarding the alleged causal relationship between his actions and the plaintiff's infertility. We agree.
Once the proponent of a summary judgment motion makes a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the opposing party to present evidence in admissible form which demonstrates the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Here, the Supreme Court correctly found that Bieniewicz's motion was supported by expert medical evidence establishing his prima facie entitlement to judgment as a matter of law. Regarding the plaintiff's infertility claim, Bieniewicz submitted three detailed and well-documented expert affidavits establishing that the damage to the plaintiff's reproductive system was unrelated to her 1995 gallbladder procedure, but was likely caused by a 1985 appendiceal abscess resulting, inter...
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