Opinion
2015-05-14
Marcus OTERO, et al., Plaintiffs–Appellants, v. Eial FAIERMAN, M.D., et al., Defendants–Respondents, Center for Orthopaedic Surgery, LLP, doing business as Center for Orthopaedic Surgery & Sports Medicine, Defendant.
Suckle Schlesinger PLLC, New York (Howard A. Suckle of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Milan P. Spisek of counsel), for Eial Faierman, M.D., respondent.
Suckle Schlesinger PLLC, New York (Howard A. Suckle of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Milan P. Spisek of counsel), for Eial Faierman, M.D., respondent.
Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Steven C. Mandell of counsel), for Louis C. Rose, M.D. and Throgs Neck Multi Care, P.C., respondents.
Bartlett, McDonough & Monaghan, LLP, Mineola (Robert G. Vizza of counsel), for Sandeep Gupta, M.D. and Throgs Neck Urgent Medical Care, P.C., respondents.
FRIEDMAN, J.P., SAXE, RICHTER, MANZANET–DANIELS, JJ.
Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered October 16, 2013, dismissing plaintiffs' complaint as against defendants-respondents pursuant to an order, same court and Justice, entered September 17, 2013, which had granted defendants-respondents' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
In this action, plaintiffs allege, among other things, that defendant doctors failed to diagnose an infection in plaintiff Marcus Otero's right knee. Defendants made a prima facie showing that they did not depart from good and accepted medical practice. Defendants submitted evidence, including testimony from experts in infectious diseases, showing that the infection was not present while plaintiff sought treatment from them, and that plaintiff did not exhibit the symptomology of an infectionduring such treatment, but rather exhibited the symptoms of a mechanical injury caused by a fall reported by plaintiff ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324–325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).
In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact ( see Alvarez, 68 N.Y.2d at 325, 508 N.Y.S.2d 923, 501 N.E.2d 572). Plaintiff's expert's opinion was conclusory and unsupported by competent evidence ( see id.; see also Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 457, 848 N.Y.S.2d 876 [1st Dept.2008] ). In particular, plaintiff's expert failed to address that plaintiff had no symptomology that would indicate an infection, as opposed to a mechanical issue, such as a fever, pain to the skin on light touch, or a change in skin color. In addition, the expert failed to support his assertion that the infection was present at the time of plaintiff's treatment with defendants ( id.).
We have considered plaintiff's remaining contentions and find them unavailing.