RIVERA v. STATE

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the cross motion is denied, and the claim is reinstated.

The claimant commenced this claim to recover damages for medical malpractice. The defendant cross-moved for summary judgment dismissing the claim. However, in support of its cross motion, the defendant failed to demonstrate, prima facie, either that there was no departure from good and accepted medical practice during the diagnosis and treatment of the claimant, or, if there was, that the alleged departure was not a proximate cause of any of the damages alleged ( cf. Mullally v. State of New York, 289 AD2d 308; Kagan v. State of New York, 221 AD2d 7; Stanback v. State of New York, 163 AD2d 298). Thus, the cross motion should have been denied regardless of the sufficiency of the claimant's opposing papers ( see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851).