AKIMOV v. BILIK (2026)

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated April 16, 2024.  The order and judgment, insofar as appealed from, granted the separate motions of the defendants Ilya Bilik and NYU Langone Health System, and the defendants Boris Khorets and Sheepshead Bay Medical Associates for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order and judgment is affirmed insofar as appealed from, with one bill of costs.

The plaintiff Boris Akimov (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action against the defendants, Ilya Bilik, NYU Langone Health System, Boris Khorets, and Sheepshead Bay Medical Associates, inter alia, to recover damages for medical malpractice.  Following the completion of discovery, Bilik and NYU Langone Health System (hereinafter together the Bilik defendants), and Khorets and Sheepshead Bay Medical Associates (hereinafter together the Khorets defendants) separately moved for summary judgment dismissing the complaint insofar as asserted against each of them.  The plaintiffs opposed the separate motions.  In an order dated April 16, 2024, the Supreme Court granted the defendants' separate motions.  The plaintiffs appeal.

“In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff” (Danziger v. Mayer, 236 AD3d 755, 758 [internal quotation marks omitted];  see Attia v. Klebanov, 192 AD3d 650, 651).  “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars” (Deitch v Sands Point Ctr. for Health & Rehabilitation, 237 AD3d 1043, 1044;  see Wiater v. Lewis, 197 AD3d 782, 783).  Once the defendant makes its prima facie showing, “the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden” (Piazza v. NYU Hosps.  Ctr., 208 AD3d 525, 526;  see Wijesinghe v. Buena Vida Corp., 210 AD3d 824).  General and conclusory allegations of medical malpractice that are not supported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a prima facie showing of summary judgment (see Pirri–Logan v. Pearl, 192 AD3d 1149, 1150;  Gilmore v. Mihail, 174 AD3d 686, 687).  “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” (Kunwar v. Northwell Health, 229 AD3d 528, 532;  see Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716).

Here, on their separate motions for summary judgment dismissing the complaint insofar as asserted against each of them, the Bilik defendants and the Khorets defendants established their prima facie entitlement to judgment as a matter of law by submitting, among other things, expert opinions which contained sufficient reasoning with appropriate references to the record to establish that the defendants did not deviate from the accepted standard of care, inter alia, in their treatment of the injured plaintiff's complaints (see Williams v. Levine, 238 AD3d 960, 962;  Weintroub v. Maimonides Med. Ctr., 222 AD3d 915, 916).

In opposition, the plaintiffs failed to raise a triable issue of fact.  “While it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field ․ the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Deitch v Sands Point Ctr. for Health & Rehabilitation, 237 AD3d at 1045;  see Quinones v. Winthrop Univ. Hosp., 230 AD3d 1170, 1172).  “[W]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Hannen v. Nici, 230 AD3d 1118, 1120 [internal quotation marks omitted];  see Abruzzi v. Maller, 221 AD3d 753, 756).

Here, the expert affirmation proffered by the plaintiffs failed to lay the requisite foundation for the expert's asserted familiarity with the applicable standards of care in the field of family and internal medicine (see Korszun v. Winthrop Univ. Hosp., 172 AD3d 1343, 1345;  Mustello v. Berg, 44 AD3d 1018, 1018–1019).  Moreover, the expert's opinion was general, speculative, and conclusory and, thus, insufficient to raise a triable issue of fact (see Pirri–Logan v. Pearl, 192 AD3d at 1150;  Gilmore v. Mihail, 174 AD3d 686, 687).

Accordingly, the Supreme Court properly granted the separate motions of the Bilik defendants and the Khorets defendants for summary judgment dismissing the complaint insofar as asserted against each of them.

DUFFY, J.P., FORD, LOVE and GOLIA, JJ., concur.