SPICER v. COMMUNITY FAMILY PLANNING COUNCIL HEALTH CENTER (2000)

In an action to recover damages for wrongful death, the defendants Community Family Planning Council Health Center and Denise Sutherland appeal from so much of an order of the Supreme Court, Queens County (Thomas, J.), dated July 7, 1999, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellants, and the action against the remaining defendants is severed.

 The Supreme Court improperly denied the appellants' motion for summary judgment dismissing the complaint insofar as asserted against them.   The appellants' motion was supported by expert medical evidence establishing their prima facie entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).   Specifically, their medical expert offered his opinion that upon providing prenatal care to the plaintiff's decedent, the appellants did not deviate from good and accepted medical practice.

 In opposition to the motion, the plaintiff provided an attorney's affirmation and photocopied excerpts from a medical textbook.   The plaintiff did not, however, produce an affidavit of a medical expert demonstrating that the appellants deviated from accepted medical practice.   Thus, they did not meet the standard of evidence required to defeat the appellants' motion (see, Orr v. Meisel, 248 A.D.2d 451, 669 N.Y.S.2d 664;  Schaefer v. Marchiano, 193 A.D.2d 664, 597 N.Y.S.2d 470;  Treinis v. Deepdale Gen. Hosp., 173 A.D.2d 605, 607-608, 570 N.Y.S.2d 185).

MEMORANDUM BY THE COURT.