O'Shea v. Buffalo Medical Group, P.C.
Full Opinion (html_with_citations)
Appeal from an order of the Supreme Court, Erie County (Diane Y. Devlin, J.), entered February 21, 2008 in a medical malpractice action. The order, insofar as appealed from, denied that part of defendants’ motion for summary judgment dismissing the complaint against defendant Blaze Sekovski, M.D.
It is hereby ordered that the order insofar as appealed from is reversed on the law without costs, the motion is granted in part, and the complaint against defendant Blaze Sekovski, M.D. is dismissed.
Memorandum: As limited by their brief, defendants appeal from an order insofar as it denied that part of their motion for summary judgment dismissing the complaint against Blaze Sekovski, M.D. (defendant) in this medical malpractice action. We agree with defendants that Supreme Court erred in denying that part of their motion. “On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby” (Murray v Hirsch, 58 AD3d 701, 702 [2009], lv denied 12 NY3d 709 [2009]). Here, defendants met their burden by submitting the affidavit of defendant establishing that his administration of a stress test to plaintiff Timothy D. O’Shea was consistent with the applicable standard of care (see generally Swezey v Montague Rehab &
All concur except Green and Gorski, JJ., who dissent and vote to affirm in the following memorandum.