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

G.P., an Infant, by and through John PIATKO and Rebecca Piatko, her Parents and Natural Guardians, and John Piatko and Rebecca Piatko, individually, Plaintiffs-Respondents, v. CHILDREN'S HOSPITAL OF BUFFALO and Linda Brodsky, M.D., Defendants-Appellants.

    Decided: November 23, 2007

PRESENT:  SCUDDER, P.J., HURLBUTT, SMITH, FAHEY, AND PINE, JJ.Damon & Morey LLP, Buffalo (Amy Archer Flaherty of Counsel), for Defendant-Appellant Kaleida Health, doing business as Children's Hospital of Buffalo. Feldman, Kieffer & Herman, LLP, Buffalo (James E. Eagan of Counsel), for Defendant-Appellant Linda Brodsky, M.D. Dempsey & Dempsey, Buffalo (Helen Kaney Dempsey of Counsel), for Plaintiffs-Respondents.

 Plaintiffs commenced this action to recover damages for injuries allegedly sustained by plaintiff daughter (plaintiff) as the result of a surgical procedure performed by defendant Linda Brodsky, M.D. at defendant Children's Hospital of Buffalo (Hospital).   Contrary to the contention of Brodsky, Supreme Court properly denied her motion for summary judgment dismissing the complaint and cross claim against her.   Brodsky failed to establish that she did not depart from accepted medical practice or that plaintiff was not injured thereby, and she thus failed to meet her initial burden (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;  Santiago v. Filstein, 35 A.D.3d 184, 186, 826 N.Y.S.2d 216;  cf. Maust v. Arseneau, 116 A.D.2d 1012, 498 N.Y.S.2d 936).

 We further conclude, however, that the court erred in denying the Hospital's cross motion for summary judgment dismissing the complaint and cross claim against it, and we therefore modify the order accordingly.   The Hospital met its initial burden by establishing that no act or omission on the part of its employees either resulted in or exacerbated plaintiff's alleged injuries (see Estate of Mollo v. Rothman, 284 A.D.2d 299, 725 N.Y.S.2d 560;  cf. Kless v. Paul T.S. Lee, M.D., P.C., 19 A.D.3d 1083, 796 N.Y.S.2d 502;  see generally Keevan v. Rifkin, 41 A.D.3d 661, 662, 839 N.Y.S.2d 151), and plaintiffs failed to raise an issue of fact sufficient to defeat the cross motion (see Sheikh v. Sinha, 272 A.D.2d 465, 707 N.Y.S.2d 241;  see also Sledziewski v. Cioffi, 137 A.D.2d 186, 190, 528 N.Y.S.2d 913;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Although plaintiffs may have raised issues of fact concerning the Hospital's role in the destruction of video footage of plaintiff's surgery, plaintiffs failed to establish that the missing footage was relevant to the claims asserted against the Hospital.   Thus, those issues of fact are insufficient to defeat the Hospital's entitlement to summary judgment (cf. Sage Realty Corp. v. Proskauer Rose, 275 A.D.2d 11, 16-17, 713 N.Y.S.2d 155, lv. dismissed 96 N.Y.2d 937, 733 N.Y.S.2d 375, 759 N.E.2d 374).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the cross motion of defendant Children's Hospital of Buffalo and dismissing the complaint and cross claim against it and as modified the order is affirmed without costs.


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