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