DelGrosso v. Solomon

In an action to recover damages for medical malpractice, etc., the defendants appeal from an order of the Supreme Court, Richmond County (Leone, J.), entered October 10, 1996, which denied the motion of the defendant Kathleen M. Perry for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the appeal by the defendants Douglas Solomon, D. Solomon, Charles T. Von Frolio, and Staten Island Hospital, is dismissed, as they are not aggrieved by the order (see, CPLR 5511); and it is further,

Ordered that on the appeal of the defendant Kathleen M. Perry the order is reversed, on the law, the motion is granted, the complaint is dismissed insofar as asserted against the defendant Kathleen M. Perry, and the action against the remaining defendants is severed; and it is further,

Ordered that Kathleen M. Perry is awarded one bill of costs, payable by the plaintiffs.

The defendant Kathleen M. Perry established prima facie that she was entitled to judgment as a matter of law (see, Zuckerman v City of New York, 49 NY2d 557, 562). Although the evidence submitted in opposition to the motion may have raised genuine issues of fact with regard to the degree of Perry’s involvement in the medical procedure in question, the plaintiffs failed to provide an affidavit from a qualified expert establishing that any alleged conduct by Perry constituted a deviation or departure from accepted medical practice (see, Alvarez v Prospect Hosp., 68 NY2d 320; Kramer v Rosenthal, 224 AD2d 392; Straton v Orange County Dept. of Social Servs., 217 AD2d 576). Perry is therefore entitled to summary judgment dismissing the complaint insofar as asserted against her. Mangano, P. J., Copertino, Joy, Florio and Luciano, JJ., concur.