Toomey v. Adirondack Surgical Assocs., 280 A.D.2d 754 (N.Y. App. Div. 2001). · Go Syfert
Toomey v. Adirondack Surgical Assocs., 280 A.D.2d 754 (N.Y. App. Div. 2001). Cases Citing This Book View Copy Cite
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cited 3× by 3 distinct cases, 2012–2014↓ Fading · …detailed, specific and factual in nature at p. 755
44 citation events (44 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 2001 → 2026 · click a year to view as-of
2001 2013 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (rule) Carroll v. Niagara Falls Mem. Med. Ctr.
N.Y. App. Div. · 2023 · confidence medium
Nothing in our decision in Abbotoy was intended to preclude a defendant in a medical malpractice action from seeking partial summary judgment where the complaint, as amplified by a bill of particulars, asserts more than one distinct theory (i.e., more than one claim) of malpractice ( see generally Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755-756 [3d Dept 2001]).
discussed Cited as authority (rule) Humbolt v. Parmeter
N.Y. App. Div. · 2021 · confidence medium
The expert's affidavit was "detailed, specific and factual in nature" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]), and " 'address[ed] each of the specific factual claims of negligence raised in . . . plaintiff's bill of particulars' " ( Webb v Scanlon , 133 AD3d 1385, 1386 [4th Dept 2015]; see Dziwulski , 181 AD3d at 1166 ).
discussed Cited as authority (rule) Thompson v. Hall
N.Y. App. Div. · 2021 · confidence medium
The affirmation of defendant's expert was merely conclusory with respect to whether the fluid accumulation issue resolved prior to plaintiff's discharge ( see generally Diaz v New York Downtown Hosp. , 99 NY2d 542, 545 [2002]; Occhino , 151 AD3d at 1871 ; Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]).
discussed Cited as authority (rule) Young v. Sethi
N.Y. App. Div. · 2020 · confidence medium
Pollina's affirmation was "detailed, specific and factual in nature and [did] not [merely] assert in simple conclusory form that [defendants] acted within the accepted standards of medical care" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [2001]; see Martino v Miller , 97 AD3d 1009, 1010 [2012]; Derusha v Sellig , 92 AD3d 1193, 1193-1194 [2012]).
discussed Cited as authority (rule) Filoteo v. Assisi Veterinary Hosp.
N.Y. App. Term. · 2020 · confidence medium
Contrary to plaintiff's contention, the affidavit of Dr. Guzman was sufficient to establish defendants' prima facie entitlement to summary judgment, notwithstanding that he is a defendant in this action ( see Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [2001]).
discussed Cited as authority (rule) Dziwulski v. Tollini-Reichert
N.Y. App. Div. · 2020 · confidence medium
The medical expert's affidavit submitted by defendant in support of her motion was "detailed, specific and factual in nature" (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [3d Dept 2001]) and " address[ed] each of the specific factual claims of negligence raised in [the] plaintiff's bill of particulars' " ( Webb v Scanlon , 133 AD3d 1385, 1386 [4th Dept 2015]; see Bubar , 177 AD3d at 1360-1361).
discussed Cited as authority (rule) Edwards v. Myers
N.Y. App. Div. · 2020 · confidence medium
The affidavits of defendants' experts were "detailed, specific and factual in nature and [did] not assert in simple conclusory form that [ECMC and Myers] acted within the accepted standards of medical care" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]; cf. Wulbrecht , 89 AD3d at 1471 ).
discussed Cited as authority (rule) Isensee v. Upstate Orthopedics, LLP
N.Y. App. Div. · 2019 · confidence medium
Affidavits submitted in support of such a motion must be "detailed, specific and factual in nature and [must] not assert in simple conclusory form that the physician acted within the accepted standards of medical care" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]).
discussed Cited as authority (rule) Boland v. Imboden
N.Y. App. Div. · 2018 · confidence medium
Defendant's affidavit and the affidavit of her expert were sufficiently detailed, specific and factual in nature, and we therefore conclude that defendant established her prima facie [*2]entitlement to judgment as a matter of law ( see Suib v Keller , 6 AD3d 805, 806 [3d Dept 2004]; Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]).
discussed Cited as authority (rule) Groff v. Kaleida Health
N.Y. App. Div. · 2018 · confidence medium
A defendant physician may meet the initial burden by submitting his or her own affidavit, as long as the affidavit is "detailed, specific and factual in nature" ( Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]; see Cole , 116 AD3d at 1285), and it "address[es] each of the specific factual claims of negligence raised in [the] . . . bill of particulars" ( Wulbrecht v Jehle , 89 AD3d 1470, 1471 [4th Dept 2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) WEBB, JEFFREY v. SCANLON, M.D., FACP, THOMAS S.
N.Y. App. Div. · 2015 · confidence medium
A defendant physician may submit his or her own affidavit to meet that burden, but that affidavit must be “detailed, specific and factual in nature” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; see Cole, 116 AD3d at 1285), and must “address each of the specific factual claims of negligence raised in [the] plaintiff’s bill of particulars” (Wulbrecht v Jehle, 89 AD3d 1470, 1471 [2011] [internal quotation marks omitted]).
discussed Cited as authority (rule) Rivera v. Albany Medical Center Hospital
N.Y. App. Div. · 2014 · confidence medium
In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to ‘ ‘tender[ ] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 754 [2001]).
discussed Cited as authority (rule) RiveravAlbanyMedicalCenterHospital
N.Y. App. Div. · 2014 · confidence medium
In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to "tender[] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact" (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 754 [2001]).
discussed Cited as authority (rule) Rivera v. Albany Medical Center Hospital
N.Y. App. Div. · 2014 · confidence medium
In order to establish a prima facie entitlement to judgment as a matter of law, defendants were required to ‘ ‘tender[ ] sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 754 [2001]).
discussed Cited as authority (rule) LaFountain v. Champlain Valley Physicians Hospital Medical Center
N.Y. App. Div. · 2012 · confidence medium
While the affidavit of a defendant physician may, in a given circumstance, suffice to establish entitlement to summary judgment, such an affidavit must be “detailed, specific and factual in nature” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; accord Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]; Suib v Keller, 6 AD3d 805, 806 [2004]).
discussed Cited as authority (rule) LaFountain v. Champlain Valley Physicians Hospital Medical Center
N.Y. App. Div. · 2012 · confidence medium
While the affidavit of a defendant physician may, in a given circumstance, suffice to establish entitlement to summary judgment, such an affidavit must be “detailed, specific and factual in nature” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; accord Amodio v Wolpert, 52 AD3d 1078, 1079 [2008]; Suib v Keller, 6 AD3d 805, 806 [2004]).
discussed Cited as authority (rule) Martino v. Miller
N.Y. App. Div. · 2012 · confidence medium
In such an action, the affidavit of a defendant physician may be sufficient to meet that burden if it is “detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; see Horth v Mansur, 243 AD2d 1041, 1042 [1997]).
discussed Cited as authority (rule) Martino v. Miller
N.Y. App. Div. · 2012 · confidence medium
In such an action, the affidavit of a defendant physician may be sufficient to meet that burden if it is “detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; see Horth v Mansur, 243 AD2d 1041, 1042 [1997]).
discussed Cited as authority (rule) Derusha v. Sellig
N.Y. App. Div. · 2012 · confidence medium
Ctr., 79 AD3d 1400, 1401 [2010]; Menard v Feinberg, 60 AD3d at 1137-1138 ; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]), thereby precluding summary judgment (see Datiz v Shoob, 71 NY2d 867, 869 [1988]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Carter v Tana, 68 AD3d 1577, 1579-1580 [2009]).
discussed Cited as authority (rule) Ramirez v. Cruz
N.Y. App. Div. · 2012 · confidence medium
Defendants-respondents met their prima facie showing that they did not depart from good and accepted practice by submitting their deposition testimony, plaintiffs hospital and medical records, and their detailed affidavits showing that their treatment of plaintiff complied with good and accepted standards of medical practice (see Joyner-Pack v Sykes, 54 AD3d 727, 729 [2008]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).
discussed Cited as authority (rule) Henderson v. State
nyclaimsct · 2012 · confidence medium
To the extent that claimant references CPLR 3212 in his affidavit, the court finds that claimant has failed to establish his prima facie entitlement to summary judgment based on the absence of proof of a departure from the accepted standard of medical care and that such departure was a proximate cause of the injuries claimed (see McKenzie v Abrahams, 72 AD3d 758, 759 [2d Dept 2010]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [3d Dept 2001]).
discussed Cited as authority (rule) WULBRECHT, NANCY S. v. JEHLE, M.D., DIETRICH V.
N.Y. App. Div. · 2011 · confidence medium
The medical expert’s affidavit submitted by defendants in support of their motion was not “detailed, specific and factual in nature and . . . [merely] assert[ed] in simple conclusory form that [defendants] acted within the accepted standards of medical care” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]; see generally Amodio v Wolpert, 52 AD3d 1078 , 1079-1080 [2008]).
cited Cited as authority (rule) Assenza v. Horowitz
N.Y. Sup. Ct. · 2009 · confidence medium
Id. at 808 . . 280 AD2d 754, 755 (2001). .
discussed Cited as authority (rule) Joyner-Pack v. Sykes
N.Y. App. Div. · 2008 · confidence medium
The defendants established, prima facie, their entitlement to summary judgment based on their affidavits which were detailed, specific, and factual in nature indicating that their treatment of the infant plaintiff did not depart from good and accepted medical practice (cf. Thomas v Richie, 8 AD3d 363, 364 [2004]; Suib v Keller, 6 AD3d 805, 806 [2004]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).
discussed Cited as authority (rule) Amodio v. Wolpert
N.Y. App. Div. · 2008 · confidence medium
Inasmuch as his affidavit was “ ‘detailed, specific and factual in nature and [did] not assert in simple conclusory form that [defendant] acted within accepted standards of [dental] care’ ” (Suib v Keller, 6 AD3d 805, 806 [2004], quoting Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]), it was sufficient to establish defendant’s prima facie entitlement to summary judgment (see Juba v Bachman, 255 AD2d 492, 493 [1998], lv denied 93 NY2d 809 [1999]).
discussed Cited as authority (rule) Hranek v. United Methodist Homes of Wyoming Conference
N.Y. App. Div. · 2006 · confidence medium
As Supreme Court found, defendant failed to carry its initial burden of proof here because its affidavits were conclusory as to meeting the standard of supervision and did not address whether its other residents, who allegedly assaulted Hranek, were known to be violent (cf. Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).
discussed Cited as authority (rule) Suib v. Keller
N.Y. App. Div. · 2004 · confidence medium
“The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001] [citations omitted]; see Winegrad v New York Univ.
discussed Cited as authority (rule) Torns v. Samaritan Hospital
N.Y. App. Div. · 2003 · confidence medium
Defendant was “required to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact” (Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 754 [2001], citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
discussed Cited as authority (rule) Gong v. Gjoni
N.Y. App. Div. · 2002 · confidence medium
Thus, plaintiffs failed to meet their burden of proof in opposing this branch of the hospital’s cross motion (see, Toomey v Adirondack Surgical Assoc., supra at 755-756; Douglass v Gibson, 218 AD2d 856, 857-858 ).
cited Cited "see" Olinsky-Paul ex rel. Olinsky-Paul v. Jaffe
N.Y. App. Div. · 2013 · signal: see · confidence high
Ctr., 97 AD3d at 1061 [internal quotation marks and citations omitted]; see Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).
cited Cited "see" Olinsky-Paul ex rel. Olinsky-Paul v. Jaffe
N.Y. App. Div. · 2013 · signal: see · confidence high
Ctr., 97 AD3d at 1061 [internal quotation marks and citations omitted]; see Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).
discussed Cited "see, e.g." Nesterenko v. Hall
N.Y. App. Div. · 2025 · signal: see also · confidence medium
Defendant met his initial burden of establishing his entitlement to judgment as a matter of law on both deviation and causation by submitting his own expert affidavit, which was detailed, specific and factual in nature, opining that he did not deviate from good and accepted medical practice and that his care and treatment of plaintiff did not proximately cause any injury ( see Wicks v Virk , 198 AD3d 1315, 1315 [4th Dept 2021]; Webb v Scanlon , 133 AD3d 1385, 1386 [4th Dept 2015]; see also Toomey v Adirondack Surgical Assoc. , 280 AD2d 754, 755 [3d Dept 2001]).
Retrieving the full opinion text from the archive…
Diane Toomey
v.
Adirondack Surgical Associates, P. C., Appellants-Respondents
Appellate Division of the Supreme Court of the State of New York.
Feb 1, 2001.
280 A.D.2d 754
Mugglin.
Cited by 34 opinions  |  Published
—Mugglin, J.

Cross appeals from an order of the Supreme Court (Moynihan, Jr., J.), entered December 21, 1999 in Warren County, which, inter alia, denied plaintiffs’ cross motion for partial summary judgment on the issue of liability and defendants’ cross motion for summary judgment dismissing the complaint.

In this medical malpractice action, plaintiffs allege that defendants Louis P. Decunzo, Jr. and Adirondack Surgical Associates, P. C. deviated from accepted standards of medical care during a surgical procedure on plaintiff Diane Toomey (hereinafter plaintiff) by severing plaintiff’s common bile duct while performing a laparoscopic cholecystectomy. Additionally, in plaintiffs’ bill of particulars it is alleged that Decunzo negligently performed a choledochoduodenostomy, resulting in a stricture of plaintiffs common bile duct.

In response to defendants’ motion for an order of preclusion, plaintiffs cross-moved for summary judgment on the issue of liability. In support of the cross motion, plaintiffs submitted an attorney’s affidavit and copies of the pleadings and the medical records of Adirondack Surgical. Plaintiffs argue that these records establish Decunzo’s malpractice as the result of his note therein which stated that “her common bile duct was inadvert.ently divided,” the use of the term “inadvertent” establishing that the transection of the common bile duct was a deviation from acceptable medical standards.

The proponent of a motion for summary judgment is required to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient, competent, admissible evidence demonstrating the absence of any genuine issue of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). The burden shifts to the opponent to come forward with appropriate evidentiary material establishing the existence of a triable issue of fact if, and only if, the proponent of the motion for summary judgment establishes a prima facie entitlement through the submission of appropriate and sufficient evidence (see, id., at 324). In our view, plaintiffs failed to shift the burden to defendants since no[*755] expert medical affidavit was submitted demonstrating that the inadvertent transection of the common bile duct during the performance of a laparoscopic cholecystectomy was a deviation from good and accepted medical practice by a general and thoracic surgeon (cf., Conti v Albany Med. Ctr. Hosp., 159 AD2d 772, 775, lv denied 76 NY2d 702). Therefore, Supreme Court appropriately denied plaintiffs’ motion for summary judgment on the issue of liability.

Turning to defendants’ cross motion for summary judgment dismissing plaintiffs’ complaint, we note that it is supported by Decunzo’s own affidavit in which he claims that injury to the common bile duct is a well-recognized complication of a cholecystectomy procedure and even more common when the procedure is performed laparoscopically. Further, Decunzo asserted that injuries to the common bile duct can and do occur with entirely appropriate surgical care.

The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care (see, Sloane v Repsher, 263 AD2d 906, 908; Machac v Anderson, 261 AD2d 811, 812; Kelly v St. Peter’s Hospice, 160 AD2d 1123, 1124). We conclude that this affidavit meets this standard and was sufficient to shift the burden to plaintiffs to establish the existence of a triable issue of fact.

In opposition to the cross motion, plaintiffs submitted an expert’s medical affidavit which asserted that a properly performed laparoscopic cholecystectomy would not include the cutting of the common bile duct and concluded that the cutting of the common bile duct by Decunzo during this operation was a deviation from accepted medical standards and constituted an act of medical malpractice. In our view, this affidavit sufficiently creates a triable issue of fact and Supreme Court correctly denied this portion of defendants’ cross motion.

We reach a different conclusion with respect to that portion of defendants’ cross motion which addresses plaintiffs’ contention that Decúnzo negligently performed the choledochoduodenostomy. Here, Decunzo avers that plaintiff could not have suffered a stricture in her common bile duct due to the choledochoduodenostomy because her biliary function and liver enzymes were normal postoperatively. Decunzo opined that such a stricture may occur later due to scar tissue development despite an operative procedure performed within the accepted standards of medical care. In opposition, plaintiffs have failed[*756] to submit any evidence which rebuts defendants’ prima facie showing that the choledochoduodenostomy was performed within the accepted standards of medical care. Thus, Supreme Court erred when it failed to grant partial summary judgment to defendants with respect to this issue.

Crew III, J. P., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendants’ cross motion for summary judgment with respect to the performance of the choledochoduodenostomy; cross motion granted to that extent, partial summary judgment awarded to defendants and said claim dismissed; and, as so modified, affirmed.