| Goldsmith v Taverni |
| 2011 NY Slip Op 09089 [90 AD3d 704] |
| December 13, 2011 |
| Appellate Division, Second Department |
| Ira Goldsmith et al., Appellants, v Joseph P. Taverni et al.,Respondents. |
—[*1] Bartlett, McDonough & Monaghan, White Plains, N.Y. (Edward J. Guardaro, Jr., ofcounsel), for respondents.
In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from anorder of the Supreme Court, Nassau County (Marber, J.), dated November 15, 2010, whichgranted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Ira Goldsmith and his wife, suing derivatively, commenced this action torecover damages for medical malpractice, alleging that the defendants failed to diagnose theinjured plaintiff's conditions of thoracic outlet syndrome and reflex sympathetic dystrophy. Thedefendants moved for summary judgment dismissing the complaint, and the Supreme Courtgranted the motion.
On their motion for summary judgment, the defendants had the burden of establishing eitherthe absence of any departure from good and accepted medical practice or that the plaintiff wasnot injured thereby (see Heller vWeinberg, 77 AD3d 622, 622-623 [2010]; Dolan v Halpern, 73 AD3d 1117 [2010]). Here, the defendants mettheir initial burden by demonstrating that any departures from good and accepted medicalpractice were not a proximate cause of any alleged injuries. In that respect, the defendants' expertaverred that, despite any failure to diagnose the injured plaintiff's conditions, the injured plaintiffnonetheless received two of the treatment modalities prescribed for those conditions, andexplained that any delay in surgical treatment of the conditions did not affect the injuredplaintiff's prognosis. In opposition, the plaintiffs' expert failed to articulate how the treatmentwould have been different had the defendant made a timely diagnosis. Furthermore, he failed toarticulate, in a nonconclusory fashion, that the injured plaintiff's condition would not havedeteriorated had there been a timely diagnosis. The affirmation of the plaintiffs' expert was,therefore, insufficient to raise a triable issue of fact as to causation (see McLoughlin v Suffolk Obstetrics &Gynecology, LLP, 85 AD3d 984 [2011]; Dunn v Khan, 62 AD3d 828, 829 [2009]).
The parties' remaining contentions are without merit or need not be reached in light [*2]of our determination.
Accordingly, the defendants' motion for summary judgment dismissing the complaint wasproperly granted. Skelos, J.P., Leventhal, Belen and Roman, JJ., concur.