General

Walter A. Reid, Appellant, v. Rye Ridge Orthopedic Associates, P. C., et al., Respondents

268 A.D.2d 574702 N.Y.S.2d 838·New York Supreme Court, Appellate Division·2000·NY

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Opinion

Walter A. Reid, Appellant, v Rye Ridge Orthopedic Associates, P. C., et al., Respondents. [702 NYS2d 838] [MAJORITY] —In an action to recover damages for medical malpractice, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Rosato, J.), dated November 17, 1998, which, upon the granting of the defendants’ motions to dismiss the complaint prior to any proof being taken at trial, is in favor of the defendants and against him dismissing the complaint. Ordered that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs. The plaintiff did not serve a notice pursuant to CPLR 3101 (d) and acknowledged he was not going to present expert opinion testimony to prove that the defendants’ conduct constituted a deviation from the requisite standard of care. Accordingly, he was necessarily unable to make out a prima facie case, and the complaint was properly dismissed (see, Kalkan v Nyack Hosp., 214 AD2d 538). Joy, J. P., Altman, Goldstein and Schmidt, JJ., concur.