Bertles v. Rubino

—In an action, inter alia, to recover damages for personal injuries, etc., the defendant Sidney D. Harvey appeals from so much of an order of the Supreme Court, Westchester County (Rosato, J.), entered December 7, 1998, as, upon reargument of his prior cross motion for summary judgment which was granted by an order of the same court, entered July 27, 1998, denied the cross motion. Ordered that the order is modified, on the law, by deleting the provision thereof which, upon reargument, denied the appellant’s cross motion and substituting therefor a provision adhering to so much of the prior order as granted the appellant’s cross motion; as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, the complaint is dismissed insofar as asserted against the defendant Sidney D. Harvey, and the action against the remaining defendants is severed. The general allegations of negligence set forth by the plaintiffs’ expert were conclusory and unsupported by evidence, and thus insufficient to defeat the appellant’s cross motion in which he made out a prima facie case for summary judgment (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Rosado v Lutheran Med. Ctr., 202 AD2d 412; Guida v Hsu, 187 AD2d 485). Further, the plaintiffs failed to establish the existence of a doctor/patient relationship so as to impose liability on the appellant (cf., Heller v Peekskill Community Hosp., 198 AD2d 265). Thompson, J. P., Joy, McGinity and Feuerstein, JJ., concur.