| Lopez v Master |
| 2009 NY Slip Op 00033 [58 AD3d 425] |
| January 6, 2009 |
| Appellate Division, First Department |
| Zoraida Lopez, Respondent, v Mumtaz K. Master, M.D.,et al., Defendants, and Ronald H. McLean, M.D., et al., Appellants. |
—[*1] Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. BarnabasHospital, appellant. Petes Berger Koshel & Goldberg, P.C., Brooklyn (Marc A. Novick of counsel), forrespondent.
Order, Supreme Court, Bronx County (Mark Friedlander, J.), entered April 9, 2008, which,insofar as appealed from as limited by the briefs, denied defendants Ronald H. McLean, M.D.'sand St. Barnabas Hospital's motions for summary judgment dismissing the complaint as againstthem, unanimously reversed, on the law, without costs, and the complaint dismissed as againstMcLean and the hospital. The Clerk is directed to enter judgment accordingly.
As the court correctly found, McLean established prima facie his entitlement to summaryjudgment by submitting a medical expert's affidavit opining that his treatment of plaintiffcomported with good and accepted medical practice and that any delay in surgery was not theproximate cause of plaintiff's postoperative complications. The evidence plaintiff submitted inopposition was insufficient to raise a triable issue of fact. Her expert physician failed tocontrovert McLean's expert's assertions that the physical findings during surgery suggested thatMcLean had timely intervened; that conservative management, rather than surgery, wasappropriate for a patient with plaintiff's symptoms (and initially appeared to be working) and wasindicated as a way to spare plaintiff unnecessary surgery, which could be risky, given her recentmedical history; and that that recent history contributed to plaintiff's postoperativecomplications. With respect to the proximate cause of the postoperative complications, plaintiff'sexpert offered only conclusory assertions (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [2006]).
As there is no liability for plaintiff's injuries against McLean and the other physiciandefendants previously dismissed from this action, there can be no vicarious liability for plaintiff'sinjuries against the hospital (see Magrizv St. Barnabas Hosp., 43 AD3d 331 [2007], lv denied 10 NY3d 790 [2008];Bertini v Columbia Presbyt. Med. Ctr., 279 AD2d 492 [2001]). In any event, [*2]nowhere in his affirmation does plaintiff's expert identify themanner in which the hospital staff deviated from good and accepted medical practice.Concur—Saxe, J.P., Nardelli, Buckley, Moskowitz and Renwick, JJ.