SPELLMAN v. GINZBURG (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Lisa A. Cairo, J.), dated October 23, 2023.  The order, insofar as appealed from, granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

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

The plaintiff David Spellman (hereinafter the injured plaintiff) was treated by the defendants for Crohn's disease.  The injured plaintiff, and his wife suing derivatively, thereafter commenced this action against the defendants, inter alia, to recover damages for medical malpractice.  The plaintiffs alleged, among other things, that the defendants inappropriately administered a medication known as Entyvio, thereby causing the injured plaintiff to develop psoriasis and psoriatic arthritis.  The defendants moved, inter alia, for summary judgment dismissing the complaint.  In an order dated October 23, 2023, the Supreme Court, among other things, granted that branch of the defendants’ motion.  The plaintiffs appeal.

“On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries” (Donohue v. Grossman, 233 A.D.3d 1003, 1005, 224 N.Y.S.3d 165 [internal quotation marks omitted]).  Where a defendant makes such a prima facie showing, the burden shifts to the plaintiff to rebut the defendant's showing by raising a triable issue of fact (see Weber v. Sharma, 232 A.D.3d 930, 222 N.Y.S.3d 602).

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” (Wagner v. Parker, 172 A.D.3d 954, 955, 100 N.Y.S.3d 280;  see Elstein v. Hammer, 192 A.D.3d 1075, 1077, 145 N.Y.S.3d 572).  “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” (Elstein v. Hammer, 192 A.D.3d at 1077, 145 N.Y.S.3d 572 [internal quotation marks omitted];  see Getselevich v. Ornstein, 219 A.D.3d 1493, 1495, 196 N.Y.S.3d 515).

Here, the defendants established, prima facie, that they did not depart from the applicable accepted standard of care, thereby demonstrating their entitlement to judgment as a matter of law dismissing the complaint.  In opposition, the plaintiffs failed to raise a triable issue of fact.  The plaintiffs submitted an affidavit and an affirmation from experts who relied upon facts that were not supported by the record and, thus, their opinions were speculative and conclusory (see Getselevich v. Ornstein, 219 A.D.3d at 1494, 196 N.Y.S.3d 515;  Wagner v. Parker, 172 A.D.3d at 955, 100 N.Y.S.3d 280).

The parties’ remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint.

GENOVESI, J.P., MILLER, DOWLING and MCCORMACK, JJ., concur.