PERRE v. VASSAR BROTHERS HOSPITAL (2008)

In an action to recover damages for medical malpractice, the defendant Vassar Brothers Hospital, a/k/a Vassar Brothers Medical Center appeals from an order of the Supreme Court, Dutchess County (Brands, J.), dated March 1, 2007, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed, with costs.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).  “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The expert affidavit submitted in support of the defendant hospital's motion for summary judgment was wholly conclusory and did not attempt to refute by specific factual reference the allegations of negligence on the part of hospital employees, such as, for example, the failure to prevent infection or prescribe proper antibiotics.   Accordingly, the motion was properly denied (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Savage v. Franco, 35 A.D.3d 581, 827 N.Y.S.2d 210;  Grandell Rehabilitation & Nursing Ctr., Inc. v. Serby, 21 A.D.3d 346, 800 N.Y.S.2d 188;  Guerin v. North Shore Univ. Hosp., 13 A.D.3d 481, 787 N.Y.S.2d 349;  Kenny v. Parkway Hosp., 281 A.D.2d 596, 722 N.Y.S.2d 167;  Brosnan v. Shafron, 278 A.D.2d 442, 718 N.Y.S.2d 641).