Gillespie v. New York Hosp. Queens, 96 A.D.3d 901 (N.Y. App. Div. 2012). · Go Syfert
Gillespie v. New York Hosp. Queens, 96 A.D.3d 901 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
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Strongest positive: Kakar Kurtz v. Dr. Marie Lupica (nysd, 2023-03-27)
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examined Cited as authority (rule) Kakar Kurtz v. Dr. Marie Lupica (3×) also: Cited "see"
S.D.N.Y. · 2023 · confidence medium
Once the moving defendant has made such a showing, “the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden.” Gillespie, 96 A.D.3d at 902 (internal citations omitted); see Stukas v. Streiter, 83 A.D.3d 18 , 30 2011).
discussed Cited as authority (rule) Leigh v. Kyle (2×)
N.Y. App. Div. · 2016 · confidence medium
Queens, 96 AD3d at 902; see Stukas v Streiter, 83 AD3d at 30 ).
discussed Cited as authority (rule) Senatore v. Epstein (2×)
N.Y. App. Div. · 2015 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 30 ).
cited Cited as authority (rule) Gressman v. Stephen-Johnson
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 23-25 ).
discussed Cited as authority (rule) Barrocales v. New York Methodist Hospital (2×)
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30 ).
discussed Cited as authority (rule) Barrocales v. New York Methodist Hospital (2×)
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30 ).
discussed Cited as authority (rule) Schmitt v. Medford Kidney Center
N.Y. App. Div. · 2014 · confidence medium
Once the health care provider has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden (see id. at 902; see Stukas v Streiter, 83 AD3d at 30 ).
cited Cited as authority (rule) Duncan v. Eastern Women's Center, Inc.
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902).
cited Cited as authority (rule) Berthen v. Bania
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 30 ).
cited Cited as authority (rule) Ahmed v. Pannone
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
cited Cited as authority (rule) Ahmed v. Pannone
N.Y. App. Div. · 2014 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
discussed Cited as authority (rule) Iulo v. Staten Island University Hospital (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 24 ).
cited Cited as authority (rule) Shehebar v. Boro Park Obstetrics & Gynecology, P.C.
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 24 ).
cited Cited as authority (rule) Shehebar v. Boro Park Obstetrics & Gynecology, P.C.
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 24 ).
discussed Cited as authority (rule) Iulo v. Staten Island University Hospital (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Stukas v Streiter, 83 AD3d at 24 ).
cited Cited as authority (rule) Poter v. Adams
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
cited Cited as authority (rule) Poter v. Adams
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
discussed Cited as authority (rule) Giambona v. Hines (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
discussed Cited as authority (rule) Giambona v. Hines (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Garrett v University Assoc. in Obstetrics & Gynecology, P.C., 95 AD3d 823, 825 [2012]).
discussed Cited as authority (rule) Aronov v. Soukkary
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; see Stukas v Streiter, 83 AD3d at 30 ). “ ‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions’ ” (DiGeronimo v Fuchs, 101 AD3d at 936, quoting Feinberg v Feit, 23 AD3d 517, 519 [2005]).
discussed Cited as authority (rule) Aronov v. Soukkary
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; see Stukas v Streiter, 83 AD3d at 30 ). “ ‘Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions’ ” (DiGeronimo v Fuchs, 101 AD3d at 936, quoting Feinberg v Feit, 23 AD3d 517, 519 [2005]).
discussed Cited as authority (rule) Contreras v. Adeyemi (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Swanson v Raju, 95 AD3d at 1106 ; Heller v Weinberg, 77 AD3d at 622-623 ).
discussed Cited as authority (rule) Contreras v. Adeyemi (2×)
N.Y. App. Div. · 2013 · confidence medium
Queens, 96 AD3d at 902; Swanson v Raju, 95 AD3d at 1106 ; Heller v Weinberg, 77 AD3d at 622-623 ).
cited Cited as authority (rule) DiGeronimo v. Fuchs
N.Y. App. Div. · 2012 · confidence medium
Queens, 96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30 ).
cited Cited as authority (rule) DiGeronimo v. Fuchs
N.Y. App. Div. · 2012 · confidence medium
Queens, 96 AD3d at 902 [citations omitted]; see Stukas v Streiter, 83 AD3d at 30 ).
Retrieving the full opinion text from the archive…
Kenneth E. Gillespie
v.
New York Hospital Queens, and William Sonstein
Appellate Division of the Supreme Court of the State of New York.
Jun 20, 2012.
96 A.D.3d 901
Published

In an action to recover damages for medical malpractice, the defendant William Sonstein appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (O’Donoghue, J.), dated March 8, 2011, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendant William Sonstein for summary judgment dismissing the complaint insofar as asserted against him is granted.

[*902] The plaintiff asserts, inter alia, that the defendant William Sonstein failed to diagnose and treat a staph infection that he developed after undergoing a craniotomy. The plaintiff alleges that Sonstein’s failure to diagnose and treat the infection allowed the infection to fulminate and ultimately required the plaintiff to undergo surgical intervention. The plaintiff commenced this action against Sonstein and others alleging medical malpractice. In the order appealed from, the Supreme Court, inter alia, denied Sonstein’s motion for summary judgment dismissing the complaint insofar as asserted against him. Sonstein appeals and we reverse the order insofar as appealed from.

“In 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 plaintiffs injuries” (Stukas v Streiter, 83 AD3d 18, 23 [2011]; see Caggiano v Cooling, 92 AD3d 634 [2012]). A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiffs injuries (see Faicco v Golub, 91 AD3d 817, 818 [2012]; Stukas v Streiter, 83 AD3d at 24). Once a defendant physician has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact (see Savage v Quinn, 91 AD3d 748, 750 [2012]), but only as to the elements on which the defendant met the prima facie burden (see Stukas v Streiter, 83 AD3d at 30).

Here, Sonstein established his prima facie entitlement to judgment as a matter of law on the issues of deviation or departure from accepted community standards of medical practice and proximate cause. The plaintiff contends that, because Sonstein included in support of his motion an affidavit which had been prepared by the plaintiffs expert which opined that Sonstein deviated from good and accepted standards of medical malpractice, and that those deviations proximately caused the plaintiffs injuries, Sonstein failed to demonstrate his prima facie entitlement to judgment as a matter of law. However, contrary to the plaintiffs contention, the plaintiffs expert’s affidavit was insufficient to preclude the award of summary judgment (see Barnett v Fashakin, 85 AD3d 832 [2011]). Sonstein demonstrated that the plaintiffs expert’s affidavit was conclusory (see generally Savage v Quinn, 91 AD3d 748 [2012]; Salvia v St. Catherine of Sienna Med. Ctr., 84 AD3d 1053 [2011]), and speculative (see generally Lau v Wan, 93 AD3d 763 [2012]; Shister v City of New York, 63 AD3d 1032 [2009]).

[*903] In opposition, the plaintiff failed to raise a triable issue of fact. In this regard, the plaintiff submitted, inter alia, the same expert’s affidavit which had previously been submitted by Sonstein.

Accordingly, the Supreme Court should have granted Son-stein’s motion for summary judgment dismissing the complaint insofar as asserted against him. Skelos, J.P., Balkin, Leventhal and Roman, JJ., concur.