Defendants move, pursuant to CPLR 3212, for an order granting summary judgment and dismissing plaintiff's complaint.

The following papers were read:

Notice of Motion-Affirmation-Exhibits A-J-Affidavit of Service1-13

Affirmation in Opposition-Exhibits 1-5-Affidavit of Service14-20

Reply Affirmation-Affidavit of Service21-22

Upon the foregoing pagers, the plaintiff's motion is decided as follows:

By way of background plaintiff brings the instant action for personal injuries allegedly sustained as a result of a fall in the office of Cardiology Consultants of Westchester, P.C. (Cardiology) on July 6, 2009. Plaintiff alleges that he entered the examination room after prompting by an employee of Cardiology. After being weighed plaintiff was asked to get on the examination table. Upon attempting to get off the scale and onto the examination table plaintiff fell. The complaint alleges two causes of action, the first alleges general negligence and the second seeks damages for medical malpractice.

On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be granted to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 361 [1974). The movant must set forth a prima facie showing of entitlement to judgment as matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the movant sets forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York. 49 NY2d 557 [1980]).

Defendants establish their prima facie entitlement to summary judgment on the general negligence cause of action through the deposition testimony of the parties (see Hardman v. Long Island Urological Associates, P.C., 253 AD2d 849 [2nd Dept 1998]). The deposition testimony of plaintiff states that he was not stumbling nor did he have any problems walking prior to the accident, he entered the room with the aid of his son Noel, he never asked for help getting on the scale and he never received help in prior visits from medical assistants (see Deposition of Plaintiff at p. 42 lines 14-18, lines 21-25, p. 48 lines 23-25). Moreover the record is devoid of any evidence that the plaintiff was disoriented, or that his cognitive functions were in any way impaired.

It is a familiar principle of New York law that, in order to establish the liability of [*2]a physician for medical malpractice, a plaintiff must prove that the physician deviated from good and accepted medical practice, and that the departure was a proximate cause of the plaintiff's injuries (see Myers v. Ferrara, 56 AD3d 78 [2nd Dept 2008]). Consequently, on a motion for summary judgment in a medical malpractice action, the defendant physician must come forward with evidence in admissible form establishing prima facie, either that he or she did not deviate from good and accepted medical practice, or that, if there was a departure, it was not the proximate cause of the plaintiff's injuries (see Germaine v. Yu, 49 AD3d 685 [2nd Dept 2008]; Williams v. Sahay, 12 AD3d 366 [2nd Dept 2004]). To the extent that this action could be considered an action for medical malpractice, as the acts or omissions complained of do not involve a matter of medical science or art requiring special skills, (see D'Elia v. Menorah Home & Hosp. for the Aged & Infim, 51 AD3d 848 [2nd Dept 2008]; Papa v. Brunswick General Hospital, 132 AD2d 601 [2nd Dept 1987]), the affirmation of George Brief, M.D. is sufficient to establish, prima facie, that defendants did not deviate from good and accepted medical practice.

Since defendants have made a prima facie showing of entitlement to judgment as a matter of law (see Zuckerman v. City of New York. 49 NY2d 557 [1980]), plaintiff must show that genuine triable issues of material fact exist in order to defeat dependants' motion (id.)

In opposition plaintiff concedes that this action is not a case of medical malpractice, and thus, plaintiff's second cause of action is dismissed. Plaintiff alleges that defendants breached their duty of care owed to plaintiff by not assisting him off the scale. The deposition testimony of plaintiff establishes that Keith Young, Medical Assistant formerly employed by Cardiology, directed plaintiff's son to put him on the scale (see Deposition of Plaintiff at p. 43 lines 13-16). Plaintiff's son, Noel Cerniglia, indicated in his deposition testimony that Mr. Young told him to walk his father to the scale and he "took over" (see Deposition of Noel Cerniglia at p. 16 lines 6-16). Mr. Young testified that he remembered plaintiff walking arm and arm with his son from the point where he stopped to talk to the receptionist to the actual examination room (see Deposition of Young at p. 30 lines 13-19). Once in the examination room Mr. Young stated that he probably asked plaintiff to get on the scale from what he could remember (see Deposition of Young at p. 32 lines 10-18). He stated that he did not know if plaintiff received any help from his son (see Deposition of Young at p. 34 lines 2-8). Mr. Young also stated that plaintiff took two steps before falling (see Deposition of Young at p. 37 lines 4-7). It is well established that the court's role in determining a summary judgment motion is issue finding not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders v. [*3]Ceppos, 46 NY2d 223 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (see Stone v. Goodson, 8 NY2d 8 [1960]). Here, there remains issues of fact as to plaintiff's first cause of action for general negligence, specifically, but not limited to, whether it was known to Mr. Young that plaintiff needed assistance in getting off the scale and traversing to the examination table and, if known, whether Mr. Young was negligent in failing to provide the necessary assistance.

Based upon the foregoing, defendants' motion is granted to the extent that plaintiff's second cause of action for medical malpractice is dismissed. A copy of this decision and order is forwarded to the Settlement Conference Part.

Dated: July 18, 2011

White Plains, New York

HON. ORAZIO R. BELLANTONI

Justice of the Supreme Court