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Moran v. Muscarella

87 A.D.3d 1299 Court N.Y. App. Div. Decision date 2011-09-30 English

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p. 1299
Joseph Moran et al., Respondents, v Joseph L. Muscarella, Jr., D.O., et al., Appellants, et al., Defendants.
[930 NYS2d 331]

In this medical malpractice action, defend

p. 1300
ants-appellants (hereafter, defendants), the sole remaining defendants, appeal from an order denying their motion for summary judgment dismissing the complaint against them. The underlying facts are set forth in Moran v Muscarella ( 85 AD3d 1579 [2011]), and we shall not repeat them here. We conclude that Supreme Court erred in denying defendants’ motion inasmuch as they met their initial burden and plaintiffs failed to raise a triable issue of fact to defeat the motion {see generally Zuckerman v City of New York, 49 NY2d 557 , 562 [1980]). The opinions of plaintiffs’ experts were based on speculation or unsupported by competent evidence and thus were insufficient to raise a triable issue of fact {see Caulkins v Vicinanzo, 71 AD3d 1224 , 1226 [2010]).

Here, defendants established as a matter of law that the care provided to Joseph Moran (plaintiff) by defendant Joseph L. Muscarella, Jr., D.O. was within the standards of acceptable medical care and in any event was not a proximate cause of plaintiffs injuries {see generally Humphrey v Gardner, 81 AD3d 1257 [2011]). With respect to the absence of proximate cause, we note that defendants submitted evidence establishing that, before the surgery in question, plaintiff suffered from carpal tunnel syndrome, multi-level disc degeneration and herniation with foraminal stenosis, and plaintiffs’ experts did not address those preexisting conditions. We do not address plaintiffs’ theory of liability that the length of plaintiffs surgery was excessive inasmuch as it was raised for the first time in opposition to defendants’ motion, i.e., based on the statement of one of plaintiffs’ experts in an affirmation that the injury to plaintiffs spine was “more likely than not a result of the . . . length of time he remained in [the] position” in which he was placed during the surgery {see Darrisaw v Strong Mem. Hosp., 74 AD3d 1769 , 1770 [2010], affd 16 NY3d 729 [2011]). Present — Scudder, EJ., Smith, Garni, Lindley and Martoche, JJ.

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