SOMWARU v. Albert Heyman, etc., appellant. (2000)

In an action, inter alia, to recover damages for medical malpractice, etc., the defendant Albert Heyman appeals from an order of the Supreme Court, Queens County (Dye, J.), dated March 5, 1999, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed, with costs.

The appellant, a surgeon, assisted another surgeon in the performance of a laparoscopic procedure on the plaintiff Deomatee Somwaru (hereinafter the plaintiff).   Although the appellant established that he removed his instruments from the plaintiff's body before any malpractice occurred, he nonetheless failed to demonstrate that he completely withdrew from participating in the procedure before the alleged malpractice.   Indeed, his deposition testimony suggests the contrary.   As the party moving for summary judgment, the burden was on the appellant to establish his entitlement to judgment as a matter of law (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Bank of N.Y. v. Granat, 197 A.D.2d 653, 602 N.Y.S.2d 942;  Daliendo v. Johnson, 147 A.D.2d 312, 317, 543 N.Y.S.2d 987).   Since the appellant failed to do so, his motion was properly denied (see, Winegrad v. New York Univ. Med. Center, supra).

The appellant's remaining contentions are without merit.

MEMORANDUM BY THE COURT.