Montagnino v. Inamed Corp.

PETER B. SKELOS

Affirmed.

Ralph G. Reiser, Syosset, N.Y., for appellants. Costello, Shea & Gaffney, LLP, New York, N.Y. (Sylvia E. Lee of counsel), for respondent.

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Parga, J.), entered May 11, 2012, which granted the motion of the defendant Alan R. Shons for summary judgment dismissing the complaint insofar as asserted against him, denied their cross motion to strike that defendant's answer or to preclude him from offering any expert evidence on the ground of spoliation of evidence, and declined to search the record and award them summary judgment on their causes of action alleging negligence, medical malpractice, and negligent spoliation of evidence insofar as asserted against that defendant.

ORDERED that the order is affirmed, with costs.

The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury ( see Schofield v. Edward B. Borden, M.D., P.C., 117 A.D.3d 936, 986 N.Y.S.2d 215; Mancuso v. Friscia, 108 A.D.3d 748, 970 N.Y.S.2d 77; Faicco v. Golub, 91 A.D.3d 817, 818, 938 N.Y.S.2d 105; Roca v. Perel, 51 A.D.3d 757, 758, 859 N.Y.S.2d 203; Furey v. Kraft, 27 A.D.3d 416, 417, 812 N.Y.S.2d 590). Accordingly, a physician moving for summary judgment dismissing a cause of action alleging medical malpractice must establish, prima facie, either that there was no departure or that any departure was not a proximate cause of the plaintiff's injuries ( see Fink v. DeAngelis, 117 A.D.3d 894, 986 N.Y.S.2d 212; DiGeronimo v. Fuchs, 101 A.D.3d 933, 936, 957 N.Y.S.2d 167; Gillespie v. New York Hosp. Queens, 96 A.D.3d 901, 902, 947 N.Y.S.2d 148; Garrett v. University Assoc. in Obstetrics & Gynecology, P.C., 95 A.D.3d 823, 825, 944 N.Y.S.2d 197; Faicco v. Golub, 91 A.D.3d 817, 938 N.Y.S.2d 105; Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176). Once the defendant physician has established a prima facie entitlement to judgment as a matter of law, the burden then shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met his or her prima facie burden ( see DiGeronimo v. Fuchs, 101 A.D.3d at 936, 957 N.Y.S.2d 167; Savage v. Quinn, 91 A.D.3d 748, 750, 937 N.Y.S.2d 265).

Here, the defendant Alan R. Shons established his prima facie entitlement to judgment as a matter of law through the submission of his deposition testimony, the injured plaintiff's medical and hospital records, and the affirmation of a medical expert stating that Shons did not deviate from the relevant standard of care in his treatment of the plaintiff. In opposition, the plaintiffs failed to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The Supreme Court also properly declined to search the record and award the plaintiffs summary judgment on their causes of action alleging negligence, medical malpractice, and negligent spoliation of evidence. As to the negligence and medical malpractice causes of action, the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law ( see Catalano v. Tanner, 23 N.Y.3d 976, 989 N.Y.S.2d 9, 11 N.E.3d 1112; Valdes v. Timberger, 41 A.D.3d 836, 837, 837 N.Y.S.2d 579). With respect to the cause of action alleging negligent spoliation of evidence, New York does not recognize an independent cause of action for damages for such a tort ( see Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773, 876 N.E.2d 1189; Vargas v. Crown Container Co., Inc., 114 A.D.3d 762, 980 N.Y.S.2d 500; Hillman v. Sinha, 77 A.D.3d 887, 910 N.Y.S.2d 116). As to the applicability of the doctrine of res ipsa loquitor, the Supreme Court correctly determined that the doctrine was not applicable to this case ( see Bucsko v. Gordon, 118 A.D.3d 653, 987 N.Y.S.2d 402).

The Supreme Court also properly denied the plaintiffs' cross motion to strike Shons' answer or to preclude him from offering any expert evidence on the ground of spoliation of evidence. The Supreme Court correctly found that the plaintiffs failed to sustain their burden of demonstrating that these sanctions were warranted under the circumstances of this case ( see Shay v. Mozer, Inc., 80 A.D.3d 687, 688, 915 N.Y.S.2d 147; Utica Mut. Ins. Co. v. Berkoski Oil Co., 58 A.D.3d 717, 718, 872 N.Y.S.2d 166).