WEI LIN v. SANG KIM (2019)

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Queens County (Peter J. O'Donoghue, J.), entered July 20, 2016.  The order, insofar as appealed from, denied that branch of the defendant's motion which was for summary judgment dismissing the complaint.

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

In a medical malpractice action, a defendant moving for summary judgment has the burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice, or that any departure was not a proximate cause of the plaintiff's injuries (see Kelly v. Rosca, 164 A.D.3d 888, 891, 83 N.Y.S.3d 317;  Barley v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d 784, 995 N.Y.S.2d 514;  Wall v. Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1044, 912 N.Y.S.2d 77).  The burden is not met if the defendant's expert renders an opinion that is conclusory in nature or unsupported by competent evidence (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Bongiovanni v. Cavagnuolo, 138 A.D.3d 12, 17, 24 N.Y.S.3d 689;  Barley v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d at 784, 995 N.Y.S.2d 514;  Duvidovich v. George, 122 A.D.3d 666, 995 N.Y.S.2d 616).

We agree with the Supreme Court's determination denying the defendant's motion for summary judgment dismissing the complaint, although on a different ground than that relied on by the court.  In support of his motion, the defendant failed to establish, prima facie, that he did not depart from good and accepted medical practice, or that any departure was not a proximate cause of the injured plaintiff's injuries.  The defendant's expert merely summarized the medical records and certain deposition testimony, and opined in a conclusory manner that the defendant's treatment of the injured plaintiff did not represent a departure from good and accepted medical practice (see Kelly v. Rosca, 164 A.D.3d at 891, 83 N.Y.S.3d 317;  Barley v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d at 784, 995 N.Y.S.2d 514).  Since the defendant failed to establish his prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the plaintiffs' opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of this determination, the defendant's remaining contention has been rendered academic.

MASTRO, J.P., DUFFY, LASALLE and IANNACCI, JJ., concur.