Opinion
2001-05263
Argued May 3, 2002.
June 18, 2002
In an action to recover damages for medical malpractice, etc., the defendant New York City Health and Hospitals Corporation appeals from an order of the Supreme Court, Queens County (Schulman, J.), dated March 20, 2001, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it.
Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Barry P. Schwartz and Julie Steiner of counsel), for appellant.
Sheldon J. Tashman, New York, N.Y., for respondents.
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.
ORDERED that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.
The defendant New York City Health and Hospitals Corporation (hereinafter NYCHHC) established through medical records and competent expert affidavits that it did not deviate or depart from accepted medical practice in its treatment of the plaintiffs (see Estate of Mollo v. Rothman, 284 A.D.2d 299; Berger v. Becker, 272 A.D.2d 565; Amsler v. Verrilli, 119 A.D.2d 786). Thus, the Supreme Court properly determined that it made a prima facie showing of entitlement to summary judgment. The burden then shifted to the plaintiffs to present competent evidence sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320) . "General allegations of medical malpractice, merely conclusory in nature and unsupported by competent evidence tending to establish the essential elements of the claim, are insufficient to defeat" a motion for summary judgment (Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358). The expert testimony presented by the plaintiffs failed to demonstrate that NYCHHC departed from an accepted standard of care in its treatment of them (see Yasin v. Manhattan Eye, Ear Throat Hosp., 254 A.D.2d 281; Domaradzki v. Glen Cove Ob/Gyn Assocs., 242 A.D.2d 282; Gross v. Friedman, 138 A.D.2d 571, affd 73 N.Y.2d 721). The affidavit contained only bare conclusory allegations and assumed facts not supported by the evidence (see Alicea v. Tuerk, 271 A.D.2d 557; Kaplan v. Hamilton Med. Assoc., 262 A.D.2d 609; Tucker v. Elimelech, 184 A.D.2d 636). Even assuming that NYCHHC breached this standard of care, there is no evidence that the breach was a proximate cause of the infant plaintiff's injuries. Accordingly, as the plaintiffs failed to rebut NYCHHC's prima facie showing of entitlement to summary judgment, the complaint should have been dismissed insofar as asserted against it.
ALTMAN, J.P., S. MILLER, McGINITY and SCHMIDT, JJ., concur.