| de Hernandez v Lutheran Med. Ctr. |
| 2007 NY Slip Op 09559 [46 AD3d 517] |
| December 4, 2007 |
| Appellate Division, Second Department |
| Maria Ofelia Nino de Hernandez, Appellant, v LutheranMedical Center et al., Defendants, and Raymond Barry Walsh etal.,Respondents. |
—[*1] Aaronson, Rappaport, Feinstein & Deutsch, LLP, New York, N.Y. (Steven C. Mandell ofcounsel), for respondent Raymond Barry Walsh. Gordon & Silber, P.C., New York, N.Y. (David Henry Sculnick and Andrew Kaufman ofcounsel), for respondent Ruben Toribio.
In an action to recover damages for medical malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Kings County (Patterson, J.), dated January 22, 2007, which,upon the granting of the separate motions of the defendants Robert Barry Walsh and RubenToribio pursuant to CPLR 4401 for judgment as a matter of law, made at the close of theplaintiff's case, is in favor of those defendants and against her, dismissing the complaint insofaras asserted against them.
Ordered that the judgment is affirmed, with one bill of costs.
It is within the Supreme Court's sound discretion to determine whether a particular witness isqualified to testify as an expert, and its determination will not be disturbed in the absence of aserious mistake, an error of law, or an improvident exercise of discretion (see Meiselman vCrown Hgts. Hosp., 285 NY 389, 398-399 [1941]; Steinbuch v Stern, 2 AD3d 709, 710 [2003]; Pignataro v [*2]Galarzia, 303 AD2d 667, 667-668 [2003]; Dimond v HeinzPet Prods. Co., 298 AD2d 426 [2002]; Goldman v County of Nassau, 170 AD2d 648[1991]; McLamb v Metropolitan Suburban Bus Auth., 139 AD2d 572, 573 [1988];Karasik v Bird, 98 AD2d 359, 362 [1984]). An expert is qualified to proffer an opinion ifhe or she possesses the requisite skill, training, education, knowledge, or experience to render areliable opinion (see Matott v Ward, 48 NY2d 455, 459 [1979]; see Miele v American Tobacco Co., 2AD3d 799, 802 [2003]). In this case, the Supreme Court providently determined that theplaintiff's expert on the issue of causation, a physicist who studied the growth patterns of breastcancer in general, was unqualified to render expert testimony regarding the rate of growth of thedecedent's tumor, a retroperitoneal sarcoma. The expert, who was not a physician, showed nospecialized knowledge, experience, training, or education from which it could be inferred that hisopinion regarding the growth of the decedent's sarcoma would be reliable (see Matott v Ward,48 NY2d at 455, 459; Behar vCoren, 21 AD3d 1045, 1047 [2005]; Rosen v Tanning Loft, 16 AD3d 480 [2005]; Miele v AmericanTobacco Co., 2 AD3d at 802).
Without any relevant expert testimony, the plaintiff was unable to present a prima facie caseof medical malpractice. Therefore, the Supreme Court properly directed judgment in favor of thedefendants Raymond Barry Walsh and Ruben Toribio at the conclusion of the plaintiff's case. Inlight of our determination, we need not reach the respondents' remaining contention. Schmidt,J.P., Rivera, Florio and Balkin, JJ., concur.