Daniels v Pisarenko, 2023 NY Slip Op 06507 [222 AD3d 831]
December 20, 2023
Appellate Division, Second Department
[*1]
Shakeela Daniels, Respondent,
v
Vadim Pisarenko et al., Appellants, et al., Defendant.
Wilson Elser Moskowitz Edelman & Dicker, LLP, New York, NY (Judy C. Selmeci of counsel), for appellants.
Abrams & Kaplan, P.C., New York, NY (David A. Kaplan of counsel), for respondent.
In an action to recover damages for medical malpractice, the defendants Vadim Pisarenko and Montefiore New Rochelle Hospital appeal from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated November 9, 2021. The order, insofar as appealed from, denied those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Vadim Pisarenko and Montefiore New Rochelle Hospital.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Vadim Pisarenko and Montefiore New Rochelle Hospital are granted.
The plaintiff commenced this action, inter alia, to recover damages for medical malpractice against the defendants Vadim Pisarenko and Montefiore New Rochelle Hospital (hereinafter Montefiore). The plaintiff alleged, among other things, that Pisarenko failed to diagnose and treat a muscle entrapment in the plaintiff’s right eye, resulting in the plaintiff’s injuries. The defendants moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against Pisarenko and Montefiore. In an order dated November 9, 2021, the Supreme Court denied those branches of the defendants’ motion. Pisarenko and Montefiore appeal.
“In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff” ( Attia v Klebanov , 192 AD3d 650 , 651 [2021]; see Wijesinghe v Buena Vida Corp. , 210 AD3d 824 , 824 [2022]). “In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff’s complaint and bill of particulars” ( Wiater v Lewis , 197 AD3d 782 , 783 [2021]; see Kielb v Bascara , 217 AD3d 756 , 756 [2023]). Once the defendant makes its prima facie showing, “the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden” ( Piazza v NYU Hosps. Ctr. , 208 AD3d 525 , 526 [2022]; see Wijesinghe v Buena Vida Corp. , 210 AD3d at 824). “To rebut the defendant’s prima facie showing, a plaintiff must submit an expert opinion that specifically addresses the defense expert’s allegations” ( Pirri-Logan v Pearl , 192 AD3d 1149 , 1150 [2021]; see M.T. v Lim , 203 AD3d 778 , 778-779 [2022]). “ ’General and conclusory allegations of [*2] medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant [provider’s] summary judgment motion’ ” ( J.P.
v Patel , 195 AD3d 852 , 854 [2021], quoting Myers v Ferrara , 56 AD3d 78 , 84 [2008]; see Bum Yong Kim v North Shore Long Is. Jewish Health Sys., Inc. , 202 AD3d 653 , 655 [2022]). “In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” ( Tsitrin v New York Community Hosp. , 154 AD3d 994 , 996 [2017] [internal quotation marks omitted]; see Bum Yong Kim v North Shore Long Is. Jewish Health Sys., Inc. , 202 AD3d at 655).
Here, the defendants established, prima facie, that Pisarenko and Montefiore were entitled to judgment as a matter of law by submitting, among other things, the plaintiff’s medical records, the transcripts of Pisarenko’s and the plaintiff’s depositions, and the expert affirmation of a board-certified plastic surgeon. The defendants’ expert opined that Pisarenko did not deviate from accepted medical practice and the record supports that the plaintiff’s condition developed after her last visit with Pisarenko ( see Wijesinghe v Buena Vida Corp. , 210 AD3d at 824; Ivey v Mbaidjol , 202 AD3d 1070 , 1072 [2022]). In opposition, the evidence submitted by the plaintiff, including the expert affirmation of a board-certified plastic surgeon, failed to raise a triable issue of fact. The plaintiff’s expert’s affirmation was conclusory, speculative, and unsupported by competent evidence tending to establish proximate causation ( see Nisevich v Shorefront Ctr. for Rehabilitation & Nursing Care , 216 AD3d 981 , 983 [2023]; Lamalfa v New York Methodist Hosp. , 202 AD3d 665 , 666 [2022]).
The parties’ remaining contentions are without merit.
Accordingly, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing the complaint insofar as asserted against Pisarenko and Montefiore. Iannacci, J.P., Wooten, Voutsinas and Wan, JJ., concur..