Hospital defendant in New York

2014We affirm. “ ‘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’ ” (DiGeronimo v Fuchs, 101 AD3d 933 , 936 [2012], quoting Stukas v Streiter, 83 AD3d 18, 23 [2011]).

2014We affirm. “ ‘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’ ” (DiGeronimo v Fuchs, 101 AD3d 933 , 936 [2012], quoting Stukas v Streiter, 83 AD3d 18, 23 [2011]).

2013A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Benjamin v Keyspan Corp., 104 AD3d 891 [2013]).

2013A defendant who seeks dismissal of a complaint pursuant to CPLR 3211 (a) (5) on the ground that it is barred by the statute of limitations bears the initial burden of proving, prima facie, that the time in which to sue has expired (see Benjamin v Keyspan Corp., 104 AD3d 891 [2013]).

2012Relying on this Court’s decision in Pipia v Nassau County ( 34 AD3d 664 [2006]), the Supreme Court reasoned that, since a cause of action under Labor Law § 741 is enforced pursuant to Labor Law § 740 (4) (d), the “waiver” provision of Labor Law § 740 (7) applied.

2012Relying on this Court’s decision in Pipia v Nassau County ( 34 AD3d 664 [2006]), the Supreme Court reasoned that, since a cause of action under Labor Law § 741 is enforced pursuant to Labor Law § 740 (4) (d), the “waiver” provision of Labor Law § 740 (7) applied.

2011Group, P.C., 64 AD3d 1140, 1141 , lv dismissed 13 NY3d 834 [internal quotation marks omitted]).

2011Group, P.C., 64 AD3d 1140, 1141 [2009], lv dismissed 13 NY3d 834 [2009] [internal quotation marks omitted]).

1980On the contrary, as this court, speaking through Judge Desmond in Woods v. Lancet ( 303 N. Y. 349, 355 ), declared, we would be abdicating 'our own function, in a field peculiarly nonstatutory,’ were we to insist on legislation and 'refuse to reconsider an old and unsatisfactory court-made rule.’ "In sum, then, the doctrine according the hospital an immunity for the negligence of its employees is such a rule, and we abandon it.

1957On the contrary, as this court, speaking through Judge Desmond in Woods v. Lancet ( 303 N. Y. 349, 355 ), declared, we would be abdicating “ our own function, in a field peculiarly nonstatutory,” were we to insist on legislation and “ refuse to reconsider an old and unsatisfactory court-made rule.” In sum, then, the doctrine according the hospital an immunity for the negligence of its employees is such a rule, and we abandon it.

2026The burden then shifted to plaintiffs ( see Nesterenko , 239 AD3d at 1315; Ziemendorf , 207 AD3d at 1157-1158 ).

2026The Hospital defendants met their initial burden of establishing their entitlement to judgment as a matter of law on deviation, with respect to plaintiffs' claims of direct liability against the Hospital defendants and vicarious liability of the Hospital defendants for the alleged malpractice of three of their employees, through the submission of an expert affidavit that was "detailed, specific and factual in nature[,] . . . addressed each negligence claim raised in [plaintiffs' amended] bill of particulars" relating to them ( Kristie M. , 240 AD3d at 1229), and opined that the Hospital defend

2026The Hospital defendants met their initial burden of establishing their entitlement to judgment as a matter of law on deviation, with respect to plaintiffs' claims of direct liability against the Hospital defendants and vicarious liability of the Hospital defendants for the alleged malpractice of three of their employees, through the submission of an expert affidavit that was "detailed, specific and factual in nature[,] . . . addressed each negligence claim raised in [plaintiffs' amended] bill of particulars" relating to them ( Kristie M. , 240 AD3d at 1229), and opined that the Hospital defend

2026The Hospital defendants met their initial burden of establishing their entitlement to judgment as a matter of law on deviation, with respect to plaintiffs' claims of direct liability against the Hospital defendants and vicarious liability of the Hospital defendants for the alleged malpractice of three of their employees, through the submission of an expert affidavit that was "detailed, specific and factual in nature[,] . . . addressed each negligence claim raised in [plaintiffs' amended] bill of particulars" relating to them ( Kristie M. , 240 AD3d at 1229), and opined that the Hospital defend

2026By not submitting the requisite expert medical response in opposition to the motion on the claims of [*3]direct liability against the Hospital defendants and their vicarious liability regarding the actions or omissions of the three employees, plaintiff failed to raise a triable issue of fact as to those claims ( see Nesterenko , 239 AD3d at 1315; Webb , 133 AD3d at 1387 ).

2021For the same reasons, the court properly granted that branch of the Hospital's motion which was for summary judgment dismissing the twelfth cause of action, asserting loss of consortium against the Hospital ( see Many v Lossef , 190 AD3d at 724 ; Sokoloff v Schor , 176 AD3d at 133; Taggart v Costabile , 131 AD3d at 257 ).

2021For the same reasons, the court properly granted that branch of the Hospital's motion which was for summary judgment dismissing the twelfth cause of action, asserting loss of consortium against the Hospital ( see Many v Lossef , 190 AD3d at 724 ; Sokoloff v Schor , 176 AD3d at 133; Taggart v Costabile , 131 AD3d at 257 ).

2021For the same reasons, the court properly granted that branch of the Hospital's motion which was for summary judgment dismissing the twelfth cause of action, asserting loss of consortium against the Hospital ( see Many v Lossef , 190 AD3d at 724 ; Sokoloff v Schor , 176 AD3d at 133; Taggart v Costabile , 131 AD3d at 257 ).

2021For the same reasons, the court properly granted that branch of the Hospital's motion which was for summary judgment dismissing the twelfth cause of action, asserting loss of consortium against the Hospital ( see Many v Lossef , 190 AD3d at 724 ; Sokoloff v Schor , 176 AD3d at 133; Taggart v Costabile , 131 AD3d at 257 ).

2019Although the Supreme Court used the phrase "weight of the evidence" in considering the Hospital's motion, it is apparent that the court held that the only evidence the plaintiffs presented on the issue of proximate cause was legally insufficient ( see Killon v Parrotta , 28 NY3d 101, 108 ; Schaedtler v Schaedtler , 66 AD3d 864, 865 ; Gayle v Neyman , 91 AD2d 75, 78 ).

2019Although the Supreme Court used the phrase "weight of the evidence" in considering the Hospital's motion, it is apparent that the court held that the only evidence the plaintiffs presented on the issue of proximate cause was legally insufficient ( see Killon v Parrotta , 28 NY3d 101, 108 ; Schaedtler v Schaedtler , 66 AD3d 864, 865 ; Gayle v Neyman , 91 AD2d 75, 78 ).

2019Although the Supreme Court used the phrase "weight of the evidence" in considering the Hospital's motion, it is apparent that the court held that the only evidence the plaintiffs presented on the issue of proximate cause was legally insufficient ( see Killon v Parrotta , 28 NY3d 101, 108 ; Schaedtler v Schaedtler , 66 AD3d 864, 865 ; Gayle v Neyman , 91 AD2d 75, 78 ).

2018Plaintiffs need not eliminate every other possible cause of the accident but defendant's negligence, as defendants suggest; rather, plaintiffs' proof must render those other causes sufficiently remote as to enable the jury to arrive at a verdict based not on speculation, but on logical inferences to be drawn from the evidence ( id . [plaintiff established a prima facie case via proof that the side rails on the decedent's bed had been lowered, in violation of a hospital rule requiring that they be maintained in a raised position, from which it might be deduced that a staff person had lowered th

2018Plaintiffs need not eliminate every other possible cause of the accident but defendant's negligence, as defendants suggest; rather, plaintiffs' proof must render those other causes sufficiently remote as to enable the jury to arrive at a verdict based not on speculation, but on logical inferences to be drawn from the evidence ( id . [plaintiff established a prima facie case via proof that the side rails on the decedent's bed had been lowered, in violation of a hospital rule requiring that they be maintained in a raised position, from which it might be deduced that a staff person had lowered th

2015The essential elements of a cause of action to recover damages for medical malpractice are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury (see Poter v Adams, 104 AD3d 925, 926 [2013]; Hayden v Gordon, 91 AD3d 819, 820 [2012]; Guzzi v Gewirtz, 82 AD3d 838 [2011]).

2015However, the Hospital defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action based upon an alleged lack of informed consent, and the plaintiffs failed to raise a triable issue of fact in opposition thereto (see Orphan v Pilnik, 15 NY3d 907 [2010]; Khosrova v Westermann, 109 AD3d 965 [2013]).

2015However, the Hospital defendants established their prima facie entitlement to judgment as a matter of law dismissing the cause of action based upon an alleged lack of informed consent, and the plaintiffs failed to raise a triable issue of fact in opposition thereto (see Orphan v Pilnik, 15 NY3d 907 [2010]; Khosrova v Westermann, 109 AD3d 965 [2013]).

2015Here, the Hospital’s motion pursuant to CPLR 3211 (a) (7) was made prior to the service of the answer and, thus, the issue of whether class certification should or should not be granted is not properly raised in the context of such a motion (see Negrin v Norwest Mtge., 293 AD2d 726, 727 [2002]; Bernstein v Kelso & Co., 231 AD2d at 323 ).