| Andreoni v Richmond |
| 2011 NY Slip Op 02612 [82 AD3d 1139] |
| March 29, 2011 |
| Appellate Division, Second Department |
| Janet Andreoni, Respondent, v Jeffrey Richmond, M.D., etal., Appellants. |
—[*1]
In an action, inter alia, to recover damages for medical malpractice, the defendants appealfrom so much of an order of the Supreme Court, Nassau County (Woodard, J.), enteredDecember 24, 2009, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion for summary judgment dismissing the complaint is granted.
The plaintiff alleges that the defendant Jeffrey Richmond, an orthopedic surgeon, negligentlytreated a fracture of her femur, resulting in a worsening of the condition and the need for a hipreplacement. She commenced this action against Richmond and his practice, the defendantOrthopaedic Associates of Manhasset, P.C. In the order appealed from, the Supreme Court, interalia, denied the defendants' motion for summary judgment dismissing the complaint. We reversethe order insofar as appealed from.
The defendants established their prima facie entitlement to judgment as a matter of law bysubmitting deposition testimony, medical records, and an expert affidavit which demonstratedthat the defendants' treatment of the plaintiff's femur fracture was within acceptable standards ofmedical practice and that, even if such treatment was not acceptable, the alleged departures didnot proximately cause the plaintiff's injuries (see Pichardo v Herrera-Acevedo, 77 AD3d641, 641-642 [2010]; Keevan v Rifkin, 41 AD3d 661, 662 [2007]; Furey v Kraft,27 AD3d 416, 418 [2006]). The defendants' submissions established, inter alia, that the plaintiffhad a fracture that did not heal, and would not have healed without another surgery, due to thenature and location of the fracture, rather than to any of the defendants' alleged departures.
The plaintiff's expert affidavit submitted in opposition to the motion was insufficient to raisea triable issue of fact as to whether the defendants' alleged departures proximately caused theplaintiff's injuries. The plaintiff's expert affidavit was conclusory on the issue of proximate causeand failed to address the detailed explanations of the defendants' expert as to why the allegeddepartures could not have caused the plaintiff's injuries (see Rebozo v Wilen, 41 AD3d457, 459 [2007]; [*2]DiMitri v Monsouri, 302 AD2d 420,421 [2003]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609, 610 [1999]; Dixon vFreuman, 175 AD2d 910, 911 [1991]; see also Shahid v New York City Health & Hosps.Corp., 47 AD3d 800, 802 [2008]).
Accordingly, the Supreme Court should have granted the defendants' motion for summaryjudgment dismissing the complaint. Mastro, J.P., Skelos, Leventhal and Roman, JJ., concur.[Prior Case History: 2009 NY Slip Op 33157(U).]