Marie Sammartino Guzzi, et al., appellants, v. Ilene Gewirtz, etc., respondent, et al., defendants. (2011)

Argued-December 2, 2010

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated September 21, 2009, which granted the motion of the defendant Ilene Gewirtz for summary judgment dismissing the complaint insofar as asserted against her, and (2) a judgment of the same court entered November 4, 2009, which, upon the order, is in favor of the defendant Ilene Gewirtz and against them dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order is dismissed;  and it is further,

ORDERED that the judgment is reversed, on the law, the motion of the defendant Ilene Gewirtz for summary judgment dismissing the complaint insofar as asserted against her is denied, and the order is modified accordingly;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiffs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248).   The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1] ).

“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury” (DiMitri v. Monsouri, 302 A.D.2d 420, 421;  see Wexelbaum v. Jean, 80 AD3d 756, 757;  Roca v. Perel, 51 AD3d 757, 758).   Where a defendant in a medical malpractice action, in moving for summary judgment, makes only a prima facie showing that he or she did not deviate or depart from accepted medical practice, the plaintiff, in order to defeat summary judgment, need only raise a triable issue of fact as to the alleged deviation or departure, and need not address the issue of proximate cause (see Stukas v. Streiter, _AD3d_ [decided herewith] ).

Here, the defendant Ilene Gewirtz established her prima facie entitlement to judgment as a matter of law on the issue of deviation or departure from accepted medical practice by submitting, inter alia, an expert affirmation that she did not depart from accepted standards of care.   In opposition, however, the plaintiffs, by the submission of an affidavit of their medical expert, raised a triable issue of fact as to whether Gewirtz's treatment of the plaintiff Marie Sammartino Guzzi departed from accepted standards of medical practice (see generally Johnson v Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 527;  Zarzana v Sheepshead Bay Obstetrics & Gynecology, 289 A.D.2d 570, 571;  Walker v. Mount Vernon Hosp., 272 A.D.2d 468).

Therefore, the Supreme Court erred in granting Gewirtz's motion for summary judgment dismissing the complaint insofar as asserted against her.

COVELLO, J.P., FLORIO, ENG and CHAMBERS, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court