| Pichardo v Herrera-Acevedo |
| 2010 NY Slip Op 07155 [77 AD3d 641] |
| October 5, 2010 |
| Appellate Division, Second Department |
| Dignorah Pichardo, as Administratrix of the Estate of Dignora Collado,Deceased, et al., Respondents, v Luis Oscar Herrera-Acevedo, M.D., Appellant, et al.,Defendants. |
—[*1] David L. Taback, P.C., New York, N.Y. (Thomas Torto and Jason Levine of counsel), forrespondents.
In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., thedefendant Luis Oscar Herrera-Acevedo appeals, as limited by his brief, from so much of an order ofthe Supreme Court, Nassau County (Mahon, J.), entered June 18, 2009, as denied his cross motion forsummary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the crossmotion of the defendant Luis Oscar Herrera-Acevedo for summary judgment dismissing the complaintinsofar as asserted against him is granted.
The appellant established his prima facie entitlement to judgment as a matter of law through expertevidence that his alleged departures from good and accepted medical practice were not the proximatecause of the decedent's injuries. Even if the appellant had diagnosed the decedent's cancer at the firstopportunity, the treatment rendered and ultimate outcome would have been identical (see Swezey v Montague Rehab & Pain Mgt.,P.C., 59 AD3d 431 [2009]; Shahidv New York City Health & Hosps. Corp., 47 AD3d 800 [2008]).
In opposition, the plaintiffs submitted an affirmation of their own expert stating that the appellantfailed to order diagnostic tests or perform a rectal examination consistent with good and acceptedmedical practices and thereby delayed the diagnosis and treatment of the decedent's colorectal cancer.However, the plaintiffs failed to raise a triable issue of fact as to whether the delay in diagnosis andtreatment was a proximate cause of the decedent's injuries (see Sheenan-Conrades v Winifred Masterson Burke Rehabilitation Hosp., 51AD3d 769 [2008]; Dellacona vDorf, 5 AD3d 625 [2004]). Therefore, the appellant's cross motion for summary judgmentshould have been granted. Santucci, J.P., Balkin, Belen and Chambers, JJ., concur.