Opinion
5967 Index 306730/10
03-13-2018
Tyrone HINSON, etc., Plaintiff–Appellant, v. Patrick ANDERSON, M.D., et al., Defendants–Respondents, Richard Duncalf, M.D., et al., Defendants.
Meagher & Meagher, P.C., White Plains (Merryl F. Weiner of counsel), for appellant. Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for Patrick Anderson, respondent. Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for Bronx Lebanon Hospital Center, respondent.
Meagher & Meagher, P.C., White Plains (Merryl F. Weiner of counsel), for appellant.
Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success (Christopher Simone of counsel), for Patrick Anderson, respondent.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for Bronx Lebanon Hospital Center, respondent.
Friedman, J.P., Andrias, Singh, Moulton, JJ.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 19 2016, which granted defendants Patrick Anderson, M.D.'s and Bronx Lebanon Hospital Center's motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants established prima facie, through expert affirmations, that they did not depart from the accepted standard of medical care in treating plaintiff's decedent and that, contrary to the theory of a failed diagnosis set forth in plaintiff's bill of particulars, the cause of death was not a pulmonary embolism (see Scalisi v. Oberlander, 96 A.D.3d 106, 120, 943 N.Y.S.2d 23 [1st Dept. 2012] ). In opposition, plaintiff did not address defendants' prima facie showing. Instead, he presented a new theory of liability through an expert affirmation opining that the decedent's cardiac arrest resulted from an undiagnosed ileus (intestinal blockage). Contrary to plaintiff's contention, this theory was not encompassed in his pleadings, and therefore its assertion cannot defeat summary judgment ( Biondi v. Behrman , 149 A.D.3d 562, 53 N.Y.S.3d 265 [1st Dept. 2017], lv dismissed in part, denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017] ).
We have considered plaintiff's remaining contentions and find them unavailing.