- May 19, 2017
Salzman & Winer, LLP (Alexander J. Wulwick, New York, NY,
of counsel), for appellant.
McAloon & Friedman, P.C., New York, NY (Gina Bernardi Di
Folco of counsel), for respondent Doshi Diagnostic Imaging
Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy
C. Selmeci and I. Elie Herman of counsel), for respondent
WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA L. PRISCILLA HALL
JOSEPH J. MALTESE, JJ.
from an order of the Supreme Court, Kings County (Marsha L.
Steinhardt, J.), dated July 7, 2014. The order granted the
separate motions of the defendants Doshi Diagnostic Imaging
Services, P.C., and Marina Perlov for summary judgment
dismissing the complaint insofar as asserted against each of
that the order is affirmed, with one bill of costs.
plaintiff was diagnosed with cancer of her left breast in
October 2010, necessitating a mastectomy of that breast and
chemotherapy. In April 2011, the plaintiff commenced this
action against, among others, Doshi Diagnostic Imaging
Services, P.C. (hereinafter Doshi Diagnostic), and Marina
Perlov, a radiologist formerly employed by Doshi Diagnostic.
The pleadings alleged, in sum, that Perlov had committed
malpractice in failing to ensure that adequate radiologic
studies of the plaintiffs left breast were taken during a
mammogram and sonogram performed at Doshi Diagnostic on July
24, 2009. Following discovery, Doshi Diagnostic and Perlov
separately moved for summary judgment dismissing the
complaint insofar as asserted against each of them, on the
ground that the July 24, 2009, diagnostic studies were
adequate and that Perlov's interpretation of those
studies did not depart from the applicable standard of care.
The Supreme Court granted the motions, and the plaintiff
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 Donnelly v Parikh, 150 A.D.3d
820; Leavy v Merriam, 133 A.D.3d 636, 637;
Lesniak v Stockholm Obstetrics & Gynecological
Servs., P.C., 132 A.D.3d 959, 959; Salvia v St.
Catherine of Sienna Med. Ctr., 84 A.D.3d 1053, 1054).
Thus, in moving for summary judgment, a physician defendant
must establish, prima facie, "either that there was no
departure or that any departure was not a proximate cause of
the plaintiffs injuries" (Lesniak v Stockholm
Obstetrics & Gynecological Servs., P.C., 132 A.D.3d
at 959; see Stukas v Streiter, 83 A.D.3d at 23).
Once this showing has been made, the burden shifts to the
plaintiff to rebut the defendant's prima facie showing
with evidentiary facts or materials "so as to
demonstrate the existence of a triable issue of fact"
(Salvia v St. Catherine of Sienna Med. Ctr., 84
A.D.3d at 1054; see Alvarez v Prospect Hosp., 68
N.Y.2d 320, 324; Stukas v Streiter, 83 A.D.3d at
30). A plaintiff need only demonstrate the existence of a
triable issue of fact "as to those elements on which the
defendant met the prima facie burden" (Harris v
Saint Joseph's Med. Ctr., 128 A.D.3d 1010, 1012;
see Stukas v Streiter, 83 A.D.3d at 30).
"'General allegations that are conclusory and
unsupported by competent evidence tending to establish the
essential elements of medical malpractice are insufficient to
defeat a defendant's motion for summary
judgment'" (Raucci v Shinbrot, 127 A.D.3d
839, 842-843, quoting Bhim v Dourmashkin, 123 A.D.3d
contrary to the plaintiffs contention, both Doshi Diagnostic
and Perlov established, prima facie, that Perlov's
treatment of the plaintiff did not depart from the applicable
standard of care (see Stukas v Streiter, 83 A.D.3d
at 30). Although Perlov testified at her deposition that one
of the July 24, 2009, radiologic views of the plaintiffs left
breast did not include the outer aspect of that breast, and
was therefore "slightly suboptimal, " Perlov
attested that the missing area was visible in other views of
the plaintiff s left breast taken on that same date and that
the radiologic studies were adequate for diagnostic purposes.
Doshi Diagnostic and Perlov each submitted, in support of
their respective motions, an affidavit dated March 20, 2014,
from Thomas Kolb, an expert in radiology, who opined, with a
reasonable degree of medical certainty, that the July 24,
2009, radiologic studies were of adequate quality and were
properly interpreted by Perlov. The affidavit of the
plaintiffs medical expert, submitted in opposition, failed to
raise a triable issue of fact (see Raucci v
Shinbrot, 127 A.D.3d at 842-843; Salvia v St.
Catherine of Sienna Med. Ctr., 84 A.D.3d at 1054).
the Supreme Court properly granted the separate motions of
Doshi Diagnostic and Perlov for summary judgment dismissing