| Darling v Scott |
| 2007 NY Slip Op 10220 [46 AD3d 1363] |
| December 21, 2007 |
| Appellate Division, Fourth Department |
| Alice M. Darling, Individually and as Executrix of Robert J.Darling, Deceased, Respondent, v Norman Scott, M.D., et al.,Appellants. |
—[*1] Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), for defendants-appellantsCanal Park Family Medicine and Clifton Springs Hospital and Clinic. Foley & Foley, Palmyra (James F. Foley of counsel), for plaintiff-respondent.
Appeals from an order of the Supreme Court, Wayne County (Dennis M. Kehoe, A.J.),entered April 20, 2007 in a medical malpractice and wrongful death action. The order denieddefendants' motions for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyreversed on the law without costs, the motions are granted and the complaint is dismissed.
Memorandum: Plaintiff commenced this medical malpractice and wrongful death actionindividually and on behalf of the estate of her husband (decedent), alleging, inter alia, thatdefendants failed to diagnose and treat decedent's cancer in a timely manner. At an appointmentwith defendant Norman Scott, M.D. on June 13, 2001, decedent complained of a lump on theright side of his neck, as well as nausea, dizziness, tightness in his neck and shoulders, and skinirritation in two areas. Dr. Scott palpated the lump and determined that it was most likelyharmless based upon its small size and soft, mobile character. Dr. Scott recommended that thelump be observed and did not order any further tests. Over the next several months, decedentvisited his primary care physician and a nurse practitioner, both employees of defendants CanalPark Family Medicine and Clifton Springs Hospital and Clinic, and they each describeddecedent's neck as supple, with no lumps. In March 2002, decedent again complained about amass on the right side of his neck and was referred to a surgeon. He was then diagnosed withmantle cell lymphoma. We agree with defendants that Supreme Court erred in denying theirmotions for summary judgment dismissing the complaint. Defendants met their initial burden bysubmitting an expert's affidavit establishing that they did not deviate from accepted medical[*2]practice in treating decedent (see Mendez v City of NewYork, 295 AD2d 487 [2002]), and plaintiff failed to raise a triable issue of fact (seegenerally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In opposition to themotions, plaintiff submitted the affidavit of an expert that contained only " '[g]eneral allegationsof medical malpractice, [which were] merely conclusory in nature and unsupported by competentevidence tending to establish the essential elements of the claim' " (Mendez, 295 AD2d at488; see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Present—Gorski,J.P., Martoche, Smith, Peradotto and Green, JJ.