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ROBERTA DAMEN, et al., appellants, v. NORTH SHORE UNIVERSITY HOSPITAL, et al., defendants, SUSAN HYMAN, etc., respondent.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs.

The now-deceased defendant, Dr. Roger A. Hyman, established his entitlement to judgment as a matter of law, thus shifting the burden to the plaintiffs to demonstrate the existence of a triable issue of fact ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 326-327). The plaintiffs failed to submit an affidavit from a medical expert to demonstrate that Dr. Hyman departed from accepted medical practice and that such departure was a proximate cause of the plaintiff Roberta Damen's injuries. Counsel's unsubstantiated assertions of malpractice were insufficient to raise a triable issue of fact ( see, Alvarez v. Prospect Hosp., supra; Fileccia v. Massapequa Gen. Hosp., 99 A.D.2d 796, affd 63 N.Y.2d 639).

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DAMEN v. NORTH SHORE UNIVERSITY HOSPITAL
(Jun 28, 1999)