| Abalola v Flower Hosp. |
| 2007 NY Slip Op 07928 [44 AD3d 522] |
| October 23, 2007 |
| Appellate Division, First Department |
| Diana Abalola, Individually and as Administrator of the Estate ofGlennie Tindal, Deceased, Respondent, v Flower Hospital, Now Known as TerenceCardinal Cooke Health Care Center, Appellant. |
—[*1] Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), forrespondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 17,2006, which denied defendant's motion for summary judgment dismissing the complaint,unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed toenter judgment in defendant's favor dismissing the complaint.
Defendant made a prima facie case of entitlement to summary judgment by submitting anaffirmation of a medical expert establishing that defendant had rendered acceptable medical careto plaintiff's decedent. In response, plaintiff submitted evidence insufficient to raise a triableissue of fact, as the affirmation of plaintiff's physician expert not only failed to controvert anumber of points in defendant's expert affirmation, but also was conclusory and devoid ofanalysis or reference to scientific data (see Alvarez v Prospect Hosp., 68 NY2d 320[1986]; DeCintio v LawrenceHosp., 33 AD3d 329 [2006]; Ramirez v Columbia-Presbyterian Med. Ctr., 16 AD3d 238[2005]). Plaintiff's physician expert also improperly raised, for the first time in opposition to thesummary judgment motion, a new theory of liability regarding the treatment of plaintiff'sdecedent that had not been set forth in the complaint or bills of particulars (see Golubov v Wolfson, 22 AD3d635 [2005]; Winters v St. Vincent's Med. Ctr. of Richmond, 273 AD2d 465 [2000]).The affidavit of plaintiff's nurse expert was similarly conclusory, and offered medical opinionsand conclusions that the expert was not competent to render (see Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482 [2004];Mills v Moriarty, 302 AD2d 436 [2003], lv denied 100 NY2d 502 [2003]).[*2]
We need not reach defendant's remaining contentions inlight of our determination. Concur—Lippman, P.J., Andrias, Williams, Buckley andMalone, JJ.