LEVY v. JURAK (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (C. Stephen Hackeling, J.), dated August 16, 2024.  The order, insofar as appealed from, granted that branch of the motion of the defendants Margarita Jurak and South Bay OB/GYN, P.C., which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them.

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

On August 22, 2017, the day before her scheduled cesarean section, the plaintiff Nichole Levy (hereinafter the injured plaintiff) presented to the defendant Good Samaritan Hospital Medical Center (hereinafter Good Samaritan) in active labor.  At the time of admission, the defendant Margarita Jurak examined the injured plaintiff, discovered that she was 10 centimeters dilated with bulging membranes, and confirmed that the fetus was in a breech position.  Jurak made the decision to perform an emergency cesarean section based on the breech presentation.  Post-operatively, the injured plaintiff suffered from vaginal leakage and incontinence.  She was diagnosed with a vesicovaginal fistula, possible vesicouterine fistula, uterocervical cesarean scar defect, and severe pelvic and omental adhesions.  The fistula was surgically repaired approximately two months after the injured plaintiff's discharge from Good Samaritan.

The injured plaintiff, and her husband suing derivatively, commenced this action, inter alia, to recover damages for medical malpractice against Jurak and the defendant South Bay OB/GYN, P.C. (hereinafter together the defendants), among others.  The defendants moved, inter alia, for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them.  The plaintiffs opposed the motion.  In an order dated August 16, 2024, the Supreme Court, among other things, granted that branch of the defendants' motion.  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’ ” (Rico v. New York Methodist Hosp., 242 AD3d 787, 788, quoting Williams v. Levine, 238 AD3d 960, 961).  “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 [internal quotation marks omitted];  see Huichun Feng v. Accord Physicians, PLLC, 194 AD3d 795, 796).

“ ‘If the defendant makes such a showing, the burden then shifts to the plaintiff to raise a triable issue of fact, but only as to those elements on which the defendant met its prima facie burden of proof’ ” (Rodriquez v. Avshalumov, 238 AD3d 1082, 1083, quoting Wiater v. Lewis, 197 AD3d 782, 783).  “To rebut the defendant's prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert's allegations” (Paxton v. Sosnowski, 238 AD3d 779, 781 [internal quotation marks omitted];  see Weintroub v. Maimonides Med. Ctr., 222 AD3d 915, 916).

Here, the defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, affirmations of two medical experts.  The defendants' experts opined that, based upon the review of the relevant medical records, transcripts of the deposition testimony, and the pleadings, the defendants did not depart from the accepted standard of care in treating the injured plaintiff and that the treatment rendered by the defendants was not a proximate cause of the injured plaintiff's injuries (see Elbagdadi v. Silverman, 237 AD3d 904, 905).  In opposition, the plaintiffs failed to raise a triable issue of fact.  The plaintiffs' expert affirmation contained only speculative and conclusory assertions that the defendants' treatment of the injured plaintiff departed from the accepted standard of care, failed to address the specific assertions of the defendants' experts regarding the defendants' treatment of the injured plaintiff, and was otherwise unsupported by the record (see Paxton v. Sosnowski, 238 AD3d at 782;  Weintroub v. Maimonides Med. Ctr., 222 AD3d at 916).

Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action to recover damages for medical malpractice insofar as asserted against them.

BARROS, J.P., CHAMBERS, LOVE and MCCORMACK, JJ., concur.