GEORGE v. Parallax Center, Inc., et al., Defendants-Respondents.

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Supreme Court, Appellate Division, First Department, New York.

Edwin GEORGE, Plaintiff-Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, et al., Defendants, Parallax Center, Inc., et al., Defendants-Respondents.

Decided: January 25, 2005

BUCKLEY, P.J., SULLIVAN, NARDELLI, WILLIAMS, SWEENY, JJ. Gardiner & Nolan, Brooklyn (Thomas J. Nolan of counsel), for appellant. Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), for Parallax Center, Inc., respondent. Peter A. Frankel, New York, for Michael D. DeMeo, M.D., respondent.

Judgment, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered May 19, 2004, dismissing the complaint as against defendants Parallax Center and DeMeo, unanimously affirmed, without costs.   Appeal from orders, same court and Justice, entered on or about November 26, 2003 and April 21, 2004, unanimously dismissed, without costs.

Parallax, a substance-abuse center, made a prima facie showing of its entitlement to dismissal of the complaint.   Plaintiff, who had briefly sought treatment there for his alcohol problem, failed to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact as to either of the causes of action for negligence and lack of informed consent (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   Indeed, neither of the affirmations provided by plaintiff's treating physician and expert psychiatrist asserted that the use of the specific medication prescribed to plaintiff, for insomniac patients with depressive features, constituted a departure from accepted practice or was not a preferred option for patients with drug-abuse problems.   They also did not deny that the dosage prescribed by Dr. DeMeo, to whom Parallax had referred plaintiff for evaluation, was within the usual range.   Moreover, the condition that plaintiff allegedly suffered from was an exceptionally rare side effect of consuming such medication.   Absent probative evidence that plaintiff had previously experienced such episodes, there is no indication of any possible departure from good and accepted medical practice.

We have considered plaintiff's various arguments and find them unavailing.