| Carlton v St. Barnabas Hosp. |
| 2012 NY Slip Op 00470 [91 AD3d 561] |
| Jnury 26, 2012 |
| Appellate Division, First Department |
| Shamona Carlton, as Administratrix of the Estate of Darrel Carlton,Deceased, Appellant, v St. Barnabas Hospital, Respondent/Third-PartyPlaintiff-Respondent, et al., Defendants. Malsuk Park, M.D., et al., Third-PartyDefendants-Respondents. |
—[*1] Garbarini & Scher, P.C., New York (William D. Buckley of counsel), for St. BarnabasHospital, respondent. Dwyer & Taglia, New York (Peter R. Taglia of counsel), for Malsuk Park, M.D., ThomasKlie, M.D., and Quarry Road Emergency Services, P.C., respondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered November 19, 2010,which granted defendant/third-party plaintiff's and third-party defendants' motions for summaryjudgment, dismissing the complaint and third-party complaint, unanimously affirmed, withoutcosts.
Third-party defendants made a prima facie showing—based on hospital records,deposition testimony and the affirmations of experts—that their treatment of plaintiff's latehusband comported with good and accepted medical practice. Contrary to plaintiff's contention,the emergency medical physician's opinions were not conclusory (cf. Wasserman vCarella, 307 AD2d 225, 226 [2003]). In addition, plaintiff failed to preserve her argumentthat third-party defendants and their experts relied on inadmissible evidence (see Pirraglia v CCC Realty NY Corp.,35 AD3d 234, 235 [2006]), and we decline to review in the interest of justice. Were we toreview it, we would reject it. Plaintiff does not challenge the accuracy or veracity of thedecedent's uncertified medical records or the transcripts of her testimony. In fact, she relied onthe medical records in opposition to the motions.[*2]
Plaintiff failed to raise an issue of fact in response to themotions. The affirmation of plaintiff's expert was conclusory, ignored the bulk of the record ofthe decedent's treatment in the emergency room, and was insufficient to contradict third-partydefendants' expert. The defense offered expert testimony that, in light of decedent's symptomsand complaints, he was appropriately diagnosed with lumbosacral sprain/strain and possibleradiculopathy, and referred to a neurologist (see Altmann v Molead, 51 AD3d 482, 483 [2008]). Plaintiff's claimthat third-party defendants should have detected decedent's deep vein thrombosis was alsoconclusory and unsupported by the record (see id.; Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]).
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Saxe, Catterson, Acosta and RomÁn, JJ.