Walker v. St. Vincent Catholic Med. Ctrs.

• Decision Date: 05 February 2014
• Citation: 2014 N.Y. Slip Op. 00653,979 N.Y.S.2d 697,114 A.D.3d 669
• Parties: James Michael WALKER, appellant, v. SAINT VINCENT CATHOLIC MEDICAL CENTERS, defendant, Noel E. Blackman, respondent.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 669
979 N.Y.S.2d 697
2014 N.Y. Slip Op. 00653

James Michael WALKER, appellant,
v.
SAINT VINCENT CATHOLIC MEDICAL CENTERS, defendant,
Noel E. Blackman, respondent.

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

Feb. 5, 2014.

Shoshana T. Bookson (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Kenneth J. Gorman], of counsel), for appellant.

Bartlett McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza and

[979 N.Y.S.2d 698]

Deborah A. Dyckman of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, SANDRA L. SGROI, and JEFFREY A. COHEN, JJ.

In an action to recover damages for medical malpractice and for lack of informed consent, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (O'Donoghue, J.), entered March 19, 2010, as granted the cross motion of the defendant Noel E. Blackman for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the cross motion of the defendant Noel E. Blackman which was for summary judgment dismissing the second cause of action insofar as asserted against him, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff.

The defendant Noel E. Blackman met his prima facie burden of establishing his entitlement to judgment as a matter of law dismissing the cause of action to recover damages for medical malpractice insofar as asserted against him by submitting the affidavit of his expert, which demonstrated that surgery performed upon the plaintiff was undertaken in accordance with good and accepted standards of medical practice ( see Poter v. Adams, 104 A.D.3d 925, 926, 961 N.Y.S.2d 556; Olgun v. Cipolla, 82 A.D.3d 1186, 1187, 920 N.Y.S.2d 175; Smith–Johnson v. Gabbur, 65 A.D.3d 1122, 1124, 885 N.Y.S.2d 330; Dandrea v. Hertz, 23 A.D.3d 332, 804 N.Y.S.2d 106). In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of his expert was conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice and, thus, was insufficient to defeat summary judgment ( see Heller v. Weinberg, 77 A.D.3d 622, 623, 909 N.Y.S.2d 477; Shectman v. Wilson, 68 A.D.3d 848, 849, 890 N.Y.S.2d 117; Sheenan–Conrades v....