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Modzelewski v. Herman

255 A.D.2d 299 Court N.Y. App. Div. Decision date 1998-11-02 English

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p. 299
Sharon Modzelewski, Appellant, v Steven Herman, Defendant, and John DeCorato, Respondent.
[679 NYS2d 421]

—In an action to recover damages for, inter alia, medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Durante, J.), dated August 1, 1997, which granted the motion of the defendant John DeCorato for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, and the motion is denied.

The plaintiff commenced this action to recover damages, inter alia, for medical malpractice arising from a bilateral breast reduction performed by the defendant Steven Herman, M.D. The defendant John DeCorato, M.D., assisted at the surgery. After issue was joined and various pre-trial discovery conducted, DeCorato moved for summary judgment dismissing the complaint insofar as asserted against him. In the order appealed from, the court granted him that relief. We now reverse.

p. 300
DeCorato failed to adduce evidence in admissible form warranting summary judgment in his favor. At his examination before trial, DeCorato professed a complete lack of any specific recollection of the surgery at issue, and of almost every other material issue in the litigation. The affidavit of DeCorato’s expert contained conclusory statements that although DeCorato, inter alia, “may have performed de-epithelization”, “may have made some incisions”, and possibly sutured the plaintiff’s breasts, he did not deviate from accepted standards of surgical practice in his role of assisting in the surgery, and did not proximately cause any of the plaintiff’s alleged injuries. Because DeCorato failed to establish entitlement to summary judgment as a matter of law, his motion must be denied (see, Alvarez v Prospect Hosp., 68 NY2d 320 ; Cahill v County of Westchester, 226 AD2d 571 ). Rosenblatt, J. P., Ritter, Copertino and McGinity, JJ., concur.

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