ARIAS v. Innamorati, etc., Respondent.

Reset A A Font size: Print

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

Gergris ARIAS, etc., et al., Appellants, v. FLUSHING HOSPITAL MEDICAL CENTER, et al., Defendants, Innamorati, etc., Respondent.

Decided: December 30, 2002

MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS and WILLIAM F. MASTRO, JJ. Mirman Markovits & Landau, P.C., New York, N.Y. (Thomas Torto of counsel), for appellants. Ellenberg & Hutson, LLP, New York, N.Y. (Michael A. Ellenberg and Danielle M. Morandi of counsel), for respondent Fausto Innamorati, s/h/a Dr. Innamorati.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief from so much of an order of the Supreme Court, Queens County (Milano, J.), dated October 26, 2001, as granted that branch of the motion of the defendant Fausto Innamorati, s/h/a Dr. Innamorati which was for summary judgment dismissing the complaint insofar as asserted against him.

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

 The Supreme Court properly granted that branch of the respondent's motion which was for summary judgment dismissing the complaint insofar as asserted against him.   The motion was supported by expert medical evidence establishing his prima facie entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The single examination by the respondent did not create a further duty on his part to personally supervise or participate in the delivery of the infant plaintiff, nor did it render him responsible for the plaintiff mother's care subsequent to his consultation (see Kleinert v. Begum, 144 A.D.2d 645, 647, 535 N.Y.S.2d 43).

 In opposition, the plaintiffs failed to raise a triable issue of fact.   An expert's affidavit presented by the plaintiffs failed to demonstrate that the respondent departed from an accepted standard of care in his treatment of the plaintiff mother (see Yasin v. Manhattan Eye, Ear & Throat Hosp., 254 A.D.2d 281, 678 N.Y.S.2d 112;  Gross v. Friedman, 138 A.D.2d 571, 526 N.Y.S.2d 152, affd. 73 N.Y.2d 721, 535 N.Y.S.2d 586, 532 N.E.2d 92).   The affidavit contained only bare conclusory allegations and assumed material facts not supported by the evidence (see Kaplan v. Hamilton Med. Assocs., 262 A.D.2d 609, 692 N.Y.S.2d 674).   Even assuming that the respondent breached this standard of care, there is no evidence that the breach was a proximate cause of the infant plaintiff's injuries.   Accordingly, as the plaintiffs failed to rebut the respondent's prima facie showing of entitlement to summary judgment, the complaint was properly dismissed insofar as asserted against him.

Copied to clipboard