GETSELEVICH v. Steve Nozad, respondent. (2023)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated May 18, 2021.  The order, insofar as appealed from, granted the motion of the defendant Steve Nozad for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action, alleging, inter alia, that the defendants failed to timely diagnose and treat her myocardial infarction, thereby causing her to suffer additional cardiac damage.  The defendants Steve Nozad and Yefim Ornstein separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.  In an order dated May 18, 2021, the Supreme Court granted Nozad's motion and denied Ornstein's motion.  The plaintiff appeals.

“A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries” (Wijesinghe v. Buena Vida Corp., 210 A.D.3d 824, 825, 178 N.Y.S.3d 184 [internal quotation marks omitted];  see Messina v. Rivera, 209 A.D.3d 1004, 1005, 177 N.Y.S.3d 317).  “Once this showing has been made, the burden shifts to the plaintiff to rebut the defendant's prima facie showing with evidentiary facts or materials so as to demonstrate the existence of a triable issue of fact” (Paglinawan v. Ing–Yann Jeng, 211 A.D.3d 743, 744–745, 180 N.Y.S.3d 237 [internal quotation marks omitted];  see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Stukas v. Streiter, 83 A.D.3d 18, 30, 918 N.Y.S.2d 176).  “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion” (Lowell v. Flom, 195 A.D.3d 801, 802, 145 N.Y.S.3d 823 [internal quotation marks omitted];  see Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280).

“Although summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact” (Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 A.D.3d 896, 898–899, 184 N.Y.S.3d 800 [internal quotation marks omitted];  see Gaston v. New York City Health & Hosps. Corp., 207 A.D.3d 705, 706, 170 N.Y.S.3d 886).  “In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” (Wijesinghe v. Buena Vida Corp., 210 A.D.3d at 825, 178 N.Y.S.3d 184 [internal quotation marks omitted];  see Valentine v. Weber, 203 A.D.3d 992, 993, 161 N.Y.S.3d 850;  Longhi v. Lewit, 187 A.D.3d 873, 878, 133 N.Y.S.3d 623).

Here, Nozad established, prima facie, that he did not depart from acceptable standards of care, thereby demonstrating his entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against him.  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's expert affidavit relied upon facts that were not supported by the record and, thus, was speculative, conclusory, and insufficient to defeat Nozad's motion for summary judgment (see Valentine v. Weber, 203 A.D.3d at 993, 161 N.Y.S.3d 850;  Lowell v. Flom, 195 A.D.3d at 803, 145 N.Y.S.3d 823;  Lowe v. Japal, 170 A.D.3d 701, 702, 95 N.Y.S.3d 363).  Accordingly, the Supreme Court properly granted Nozad's motion for summary judgment dismissing the complaint insofar as asserted against him.

DILLON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.