Schiavone v. Victory Memorial Hospital

In an action to recover damages for medical malpractice, etc., the defendant Gabriel Amalanathan, s/h/a Amalanathan Gabriel, appeals from an order of the Supreme Court, Kings County (Levine, J.), dated March 1, 2000, which denied his motion to dismiss the complaint insofar as asserted against him.

Ordered that the order is reversed, on the law, with costs, the motion is granted, the complaint is dismissed insofar as asserted against the appellant, and the action against the remaining defendants is severed.

*465The appellant made out a prima facie case establishing, as a matter of law, that he did not commit medical malpractice in his treatment of the decedent. This shifted the burden to the plaintiffs to show by way of admissible evidentiary proof the existence of a triable issue of fact. The assertion in the affidavit of the plaintiffs’ expert that the appellant may have been negligent in treating the decedent was based solely upon speculations and conjecture and thus was insufficient to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the motion (see, Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). Ritter, J. P., S. Miller, Goldstein and Smith, JJ., concur.