        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1266
CA 14-02242
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, LINDLEY, AND VALENTINO, JJ.


JEFFREY WEBB, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

THOMAS S. SCANLON, M.D., FACP,
DEFENDANT-RESPONDENT.


JUSTIN S. WHITE, WILLIAMSVILLE, FOR PLAINTIFF-APPELLANT.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (J. MARK GRUBER OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered September 29, 2014. The order granted the motion
of defendant for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this medical malpractice action
alleging that defendant, his primary care physician, was negligent in
prescribing him various pain medications to treat pain that plaintiff
reported experiencing in his arm and shoulder. Although plaintiff
admits that he falsified symptoms so that he could obtain the pain
medication prescriptions from defendant, the complaint, as amplified
by the bill of particulars, alleges, inter alia, that defendant should
have performed diagnostic testing to determine whether plaintiff
actually needed the medications. We conclude that Supreme Court
properly granted defendant’s motion for summary judgment dismissing
the complaint.

     In order to meet his initial burden on his summary judgment
motion in this medical malpractice action, defendant was required to
“present factual proof, generally consisting of affidavits, deposition
testimony and medical records, to rebut the claim of malpractice by
establishing that [he] complied with the accepted standard of care or
did not cause any injury to the patient” (Cole v Champlain Val.
Physicians’ Hosp. Med. Ctr., 116 AD3d 1283, 1285; see Lake v Kaleida
Health, 59 AD3d 966, 966). A defendant physician may submit his or
her own affidavit to meet that burden, but that affidavit must be
“detailed, specific and factual in nature” (Toomey v Adirondack
Surgical Assoc., 280 AD2d 754, 755; see Cole, 116 AD3d at 1285), and
must “address each of the specific factual claims of negligence raised
in [the] plaintiff’s bill of particulars” (Wulbrecht v Jehle, 89 AD3d
                                 -2-                            1266
                                                           CA 14-02242

1470, 1471 [internal quotation marks omitted]).

     Here, in support of his motion, defendant submitted plaintiff’s
deposition testimony in which plaintiff admitted that he lied to
defendant about his subjective complaints of pain in order to
“manipulate[ defendant] into prescribing drugs” for him. Defendant
also submitted his own affidavit, with accompanying medical records,
wherein he described his physical examinations of plaintiff and
plaintiff’s complaints of pain and reduced range of motion. Defendant
opined that his treatment of plaintiff complied with the accepted
standard of medical care because he performed physical examinations
when they were called for, plaintiff was instructed on the
medication’s proper use when prescribed, and the medications were
properly prescribed based upon plaintiff’s history, his complaints,
and the physical examinations performed by defendant and other
physicians. Defendant’s affidavit was sufficiently detailed and
specific, and defendant thus established his entitlement to judgment
as a matter of law (see Suib v Keller, 6 AD3d 805, 806; Toomey, 280
AD2d at 755). In order to raise an issue of fact to defeat
defendant’s motion, plaintiff was required to submit “evidentiary
facts or materials to rebut the prima facie showing by the defendant
physician” beyond mere “[g]eneral allegations of medical malpractice”
(Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). It is well settled
that “[e]xpert opinion evidence from a party defendant in a medical
malpractice action which is otherwise sufficient to show entitlement
to summary judgment ‘requires some expert response from plaintiff on
the question of alleged deviation from proper and approved medical
practice’ ” (Maust v Arseneau, 116 AD2d 1012, 1012; see Bills v
Africano, 132 AD2d 935, 935). Here, plaintiff failed to submit the
requisite expert medical response in opposition to the motion (see
Maust, 116 AD2d at 1012; see also Brown v Soldiers & Sailors Mem.
Hosp., 193 AD2d 1077, 1078), and “[t]he affidavit of plaintiff’s
attorney was insufficient to raise a triable issue of fact” (Bills,
132 AD2d at 935).




Entered:   November 20, 2015                      Frances E. Cafarell
                                                  Clerk of the Court
