| Worthy v Good Samaritan Hosp. Med. Ctr. |
| 2008 NY Slip Op 03636 [50 AD3d 1023] |
| April 22, 2008 |
| Appellate Division, Second Department |
| Denise Worthy, Appellant, v Good Samaritan HospitalMedical Center, Respondent. |
—[*1] Lewis Johs Avallone Aviles, LLP, Riverhead, N.Y. (Michael G. Kruzynski of counsel), forrespondent.
In an action to recover damages for medical malpractice, the plaintiff appeals from (1) anorder of the Supreme Court, Suffolk County (Pines, J.), dated August 7, 2006, which granted thedefendant's motion for summary judgment dismissing the complaint, and (2) an order of the samecourt dated March 28, 2007 which denied her motion for leave to renew and reargue heropposition to the defendant's motion.
Ordered that the appeal from so much of the order dated March 28, 2007, as denied thatbranch of the plaintiff's motion which was for leave to reargue is dismissed, as no appeal liesfrom an order denying reargument (seeSimpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]); and it is further,
Ordered that the order dated August 7, 2006 is affirmed; and it is further,
Ordered that the order dated March 28, 2007 is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendant.[*2]
In its order dated August 7, 2006 the Supreme Courtproperly granted the defendant's motion for summary judgment dismissing the complaint torecover damages for medical malpractice. The defendant made a prima facie showing ofentitlement to summary judgment through an affirmation of its medical expert, a board-certifiedphysician in emergency medicine (see generally Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The defendant's medicalexpert conducted a comprehensive review of the plaintiff's medical records, the plaintiff's bill ofparticulars, as supplemented, and the deposition testimony of the treating emergency medicinephysician and the respiratory technician. The expert opined, with a reasonable degree of medicalcertainty, that the defendant did not depart from good and accepted standards of medical care inits treatment of the plaintiff's asthma condition and did not proximately cause her alleged injuries(see generally Ramsay v GoodSamaritan Hosp., 24 AD3d 645 [2005]; Hemingway v New York City Health & Hosps. Corp., 13 AD3d484 [2004]; Leon v Southside Hosp., 227 AD2d 384 [1996]). In opposition, theplaintiff failed to raise a triable issue of fact. The affirmation submitted by the plaintiff inopposition to the motion was of no probative value insofar as it was a redacted affirmation froma physician who was not authorized by law to practice in the state of New York (seeCPLR 2106).
The Supreme Court properly denied that branch of the plaintiff's motion which was for leaveto renew her opposition to the defendant's motion for summary judgment. Although the plaintiffcorrected the procedural error by submitting an affidavit of the same physician (seeWeissman v Wider, 235 AD2d 474 [1997]), the conclusory and unsupported allegations ofmedical malpractice contained therein failed to raise a triable issue of fact (see Posokhov v Oselkin, 44 AD3d921 [2007]; see generally Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]).Therefore, admission of these new facts would not have changed the prior determination (seeCPLR 2221 [e] [2]; Williams vNassau County Med. Ctr., 37 AD3d 594 [2007]; Kingston v Brookdale Hosp. & Med. Ctr., 4 AD3d 397, 398[2004]). Skelos, J.P., Dillon, Leventhal and Chambers, JJ., concur.