Opinion
15602 Index No. 20565/19E Case No. 2021–04135
03-29-2022
Aaisha STEVENSON, as mother and natural guardian of C.J., Plaintiff–Appellant, v. Kabita GHOSH–HAZRA, M.D., et al., Defendants–Respondents.
Landers & Cernigliaro, P.C., Carle Place (Stanley A. Landers of counsel), for appellant. Kaufman Borgeest & Ryan LLP, New York (Jacqueline Mandell of counsel), for respondents.
Landers & Cernigliaro, P.C., Carle Place (Stanley A. Landers of counsel), for appellant.
Kaufman Borgeest & Ryan LLP, New York (Jacqueline Mandell of counsel), for respondents.
Kapnick, J.P., Webber, Friedman, Kennedy, Mendez, JJ.
Order, Supreme Court, Bronx County (Doris M. Gonzalez, J.), entered on or about October 8, 2021, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff alleges that defendants failed to timely diagnose the infant plaintiff's brain tumor, causing him to have a worse prognosis and no chance for a complete resection of the tumor. Defendants established their prima facie entitlement to summary judgment by submitting detailed expert affidavits showing that, even assuming they were responsible for an eight-month delay in diagnosis, that did not proximately cause any of the infant plaintiff's alleged injuries, or in any way change the course of his treatment or his ultimate prognosis (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Ramirez v. Cruz, 92 A.D.3d 533, 533, 938 N.Y.S.2d 540 [1st Dept. 2012] ). In particular, the experts explained that due to the type of tumor and its location in the brain stem, a complete resection would not have been feasible, regardless of whether it was diagnosed earlier, and that the same course of treatment would have been indicated. The motion court correctly found that plaintiff failed to raise an issue of fact, because while her expert neurosurgeon had sufficient credentials to be considered, his opinion concerning the rate of growth of the tumor was speculative and conclusory, and he failed to address or controvert a number of points made by defendants' experts concerning the infant plaintiff's condition and the feasibility of complete resection (see Rodriguez v. Waldman, 66 A.D.3d 581, 582, 887 N.Y.S.2d 577 [1st Dept. 2009] ; Ramirez, 92 A.D.3d at 533, 938 N.Y.S.2d 540 ).