GARGIULO v. GEISS (2007)

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated March 13, 2006, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the motion for summary judgment dismissing the complaint is granted.

The plaintiff commenced this medical malpractice action to recover damages for personal injuries allegedly sustained as a result of the defendant's negligent laparoscopic surgical repair and post-operative treatment of the plaintiff's hernia.   The defendant moved for summary judgment and the Supreme Court denied his motion on the ground that it was improperly supported by his own affidavit and the uncertified medical records of the plaintiff's treating neurologist.

“On a motion for summary judgment dismissing the complaint in a medical malpractice action, ‘the defendant doctor 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’ ” (Chance v. Felder, 33 A.D.3d 645, 645, 823 N.Y.S.2d 172, quoting Williams v. Sahay, 12 A.D.3d 366, 368, 783 N.Y.S.2d 664).  “Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact” (Chance v. Felder, supra at 645-646, 823 N.Y.S.2d 172).  “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572;  see Jonassen v. Staten Is. Univ. Hosp., 22 A.D.3d 805, 806, 803 N.Y.S.2d 700).

 The Supreme Court erred in denying the defendant's motion for summary judgment dismissing the complaint.   As the defendant correctly contends, he properly relied on his own expert's affidavit in support of his motion (see e.g. Juba v. Bachman, 255 A.D.2d 492, 493, 680 N.Y.S.2d 626;  Whalen v. Victory Mem. Hosp., 187 A.D.2d 503, 589 N.Y.S.2d 590).   Through the plaintiff's medical records, the defendant's deposition testimony, and his expert affidavit, the defendant established his entitlement to judgment as a matter of law (see DiMitri v. Monsouri, 302 A.D.2d 420, 421, 754 N.Y.S.2d 674;  cf. Kearse v. New York City Tr. Auth., 16 A.D.3d 45, 47 n. 1, 789 N.Y.S.2d 281).   In opposition, the affidavit of the plaintiff's expert contained only conclusory opinions regarding the defendant's alleged negligence which were insufficient to raise a triable issue of fact (see DiMitri v. Monsouri, supra).   Additionally, the affidavit did not even address the issue of the defendant's alleged negligent post-operative treatment of the plaintiff's hernia (see Wilson v. Buffa, 294 A.D.2d 357, 358, 741 N.Y.S.2d 713).