Opinion
2014-05-8
John GAUDIO, Plaintiff–Appellant, v. David GONZALEZ, et al., Defendants–Respondents, Our Lady of Mercy Medical Center, et al., Defendants.
Peter E. Tangredi & Associates, White Plains (Stephen D. Chakwin, Jr. of counsel), for appellant. Kaufman, Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for respondents.
Peter E. Tangredi & Associates, White Plains (Stephen D. Chakwin, Jr. of counsel), for appellant. Kaufman, Borgeest & Ryan LLP, Valhalla (Edward J. Guardaro, Jr. of counsel), for respondents.
SAXE, J.P., MOSKOWITZ, FREEDMAN, GISCHE, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered July 20, 2012, which, to the extent appealed from, granted defendants-respondents' cross motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting medical records and the affirmations of two experts ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Based upon their review of medical records and diagnostic films, defendants' experts concluded that defendant Dr. David Gonzalez's treatment of plaintiff's right tibia/fibula fracture was within the standard of care. Further, the experts attributed plaintiff's injuries to the nature of his fractures, his co-morbidities, his noncompliance with directions to avoid bearing weight on the leg, and/or an intervening trauma.
In opposition, plaintiff failed to raise a triable issue of fact. His expert's conclusory opinion was made without reference to any diagnostic or clinical findings, failed to explain how earlier use of electrical stimulation, which the expert conceded had no appreciable effect on plaintiff, could have contributed to the alleged injuries, and failed to controvert, let alone address, the defense experts' claims ( see Abalola v. Flower Hosp., 44 A.D.3d 522, 522, 843 N.Y.S.2d 615 [1st Dept. 2007]; Margolese v. Uribe, 238 A.D.2d 164, 166–167, 655 N.Y.S.2d 524 [1st Dept.1997] ).
We have considered plaintiff's remaining arguments and find them unavailing.