In its January 31, 2025 Memorandum and Opinion, the Supreme Court of the State of New York Appellate Division, Fourth Judicial Circuit, affirmed the trial court’s denial of the medical malpractice defendants’ motion for summary judgment, stating:
In support of the motion, defendants submitted the affirmations of two expert witnesses, an emergency medicine physician and a pediatric ophthalmologist. We conclude that defendants did not meet their initial burden through reliance on the emergency medicine physician’s affirmation, inasmuch as that expert “mentioned causation only in a fleeting and conclusory manner” (Fargnoli v Warfel, 186 AD3d 1004, 1005 [4th Dept 2020]). Similarly, defendants did not meet their initial burden through reliance on the pediatric ophthalmologist’s affirmation inasmuch as that expert merely conclusorily asserted that there was “no causal connection” or “no causal relationship” between Chalupka’s emergency room treatment of Mason and her resulting injuries. Such conclusory statements are insufficient for defendants to carry their burden on the motion with respect to proximate cause (see Heinrich v Serens, 217 AD3d 1320, 1324 [4th Dept 2023]; Fargnoli, 186 AD3d at 1005). Specifically, we note that, in his affirmation, the pediatric ophthalmologist opined that “there is no causal relationship between [Chalupka’s] proper and thorough evaluation and recommendations . . . and [Mason’s] alleged injuries from VKH.” That assertion, however, sheds no light on the issue of causation here because it assumes—at all times—that Chalupka’s treatment of Mason was not negligent. The expert’s burden here was to show “that, even if [Chalupka] was negligent, [her] negligence was not a proximate cause of the [injuries]” (Pagels v Mullen, 167 AD3d 185, 187 [4th Dept 2018]; see e.g. Stefanski v Huntress, 224 AD3d 1362, 1363 [4th Dept 2024]; Burnett v Allen, 218 AD3d 1190, 1191 [4th Dept 2023]). However, by assuming that Chalupka’s treatment and diagnosis of Mason was correct in every respect, the pediatric ophthalmologist’s opinion that any delay in directly contacting the specialist did not have any significant impact on the outcome is conclusory inasmuch as it assumes that Mason was not suffering from an emergent condition—i.e., VKH—at the time of the emergency room visit. Therefore, the pediatric ophthalmologist’s affirmation failed to establish that the “alleged departure did not proximately cause . . . [Mason’s] injuries” (Simko, 199 AD3d at 1409 [emphasis added]; see generally Heinrich, 217 AD3d at 1321-1322, 1324).
Because defendants failed to meet their initial burden on the motion with respect to proximate cause, the burden never shifted to plaintiff with respect to that element, and denial of the motion was required “regardless of the sufficiency of the opposing papers” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see Harbinger v Kato, 221 AD3d 1510, 1511 [4th Dept 2023]; Heinrich, 217 AD3d at 1324). We have considered defendants’ remaining contentions and conclude that none warrants reversal or modification of the order.”
Source Mylar v. Niagara Falls Memorial Medical Center, CA 23-01544.
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