Arshack Hajek & Lehrman, PLLC, New York, NY (Lynn Hajek
and Ria Rana of counsel), for defendant third-party
Albanese & Albanese, LLP (Mauro Lilling Naparty, LLP,
Woodbury, NY [Caryn L. Lilling and Gregory A. Cascino], of
counsel), for third-party defendant-respondent.
C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS-RADIX,
JOSEPH J. MALTESE, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice, the defendant third-party plaintiff appeals from
an order of the Supreme Court, Kings County (Jacobson, J.),
dated January 12, 2015, which granted the third-party
defendant's motion for summary judgment dismissing the
that the order is affirmed, with costs.
plaintiff's decedent was a resident of the defendant
Brooklyn United Methodist Church Home and, on several
occasions prior to her death on April 2, 2008, was admitted
to the defendant third-party plaintiff Wyckoff Heights
Medical Center (hereinafter Wyckoff) for medical treatment.
The plaintiff commenced this action, alleging, among other
things, that the defendants failed to properly prevent and
treat pressure ulcers that developed while the decedent was
admitted to Wyckoff. Wyckoff commenced a third-party action
seeking indemnification and contribution from the third-party
defendant, Syed A. Husain, who was the decedent's primary
and admitting physician. Husain moved for summary judgment
dismissing the third-party complaint, and the Supreme Court
granted the motion. Wyckoff appeals.
order to establish the liability of a physician for medical
malpractice, a plaintiff must prove that the physician
deviated or departed from accepted community standards of
practice, and that such departure was a proximate cause of
the plaintiff's injuries" (Stukas v
Streiter, 83 A.D.3d 18, 23; see Swanson v Raju,
95 A.D.3d 1105, 1106; Heller v Weinberg, 77 A.D.3d
622). A defendant physician seeking summary judgment in a
malpractice action bears the initial burden of establishing,
prima facie, either that there was no departure from good and
accepted medical practice or that any alleged departure did
not proximately cause the plaintiff's injuries (see
Duvidovich v George, 122 A.D.3d 666, 666; Swanson v
Raju, 95 A.D.3d at 1106; Stukas v Streiter, 83
A.D.3d at 24). In opposition, the plaintiff must demonstrate
the existence of a triable issue of fact as to the elements
on which the defendant has met his or her initial burden
(see Swanson v Raju, 95 A.D.3d at 1106; Stukas v
Streiter, 83 A.D.3d at 24). "General allegations of
medical malpractice, merely conclusory and unsupported by
competent evidence tending to establish the essential
elements of medical malpractice, are insufficient to defeat
defendant physician's summary judgment motion"
(Alvarez v Prospect Hosp., 68 N.Y.2d 320, 325;
see Duvidovich v George, 122 A.D.3d at 666-667).
in support of his motion for summary judgment dismissing the
third-party complaint, Husain submitted, inter alia, an
expert affirmation that established, prima facie, that he did
not depart from good and accepted standards of medical
practice in his treatment of the decedent, and that, in any
event, any alleged departure was not a proximate cause of the
decedent's injuries or her eventual death. In opposition,
Wyckoff failed to raise a triable issue of fact. Contrary to
Wyckoff's contention, its medical expert's
affirmation submitted in opposition was conclusory,
speculative, and without basis in the record with regard to
the issue of Husain's departure from good and accepted
standards of medical practice, and, in any event, failed to
raise a triable issue of fact with regard to whether any
alleged departure was a proximate cause of the decedent's
injuries or eventual death (see Duvidovich v George,
122 A.D.3d 666; Berthen v Bania, 121 A.D.3d 732;
Ramsay v Good Samaritan Hosp., 24 A.D.3d 645).
remaining contention is without merit.
the Supreme Court properly granted Husain's motion for
summary judgment ...