| Limmer v Rosenfeld |
| 2012 NY Slip Op 01500 [92 AD3d 609] |
| February 28, 2012 |
| Appellate Division, First Department |
| Louis Limmer et al., Appellants, v Nathan S. Rosenfeld,M.D., Defendant, and The Winifred Masterson Burke Rehabilitation Hospital, Inc., et al.,Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Rory L. Lubin of counsel),for respondents.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered May 17, 2011, whichgranted defendants the Winifred Masterson Burke Rehabilitation Hospital, Inc. and Richard S.Novitch's (defendants) motion for summary judgment dismissing the complaint as against them,unanimously affirmed, without costs.
Defendants established prima facie that they did not depart from good and accepted medicalpractice in their treatment of plaintiff Louis Limmer (see Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]). Plaintiff failed to rebut this showing. Initially, we note that the courterred in rejecting the affirmation of plaintiff's expert on the grounds, inter alia, that the expert hadnot demonstrated "his expertise or familiarity in treating this kind of [infection]." "[A] physicianneed not be a specialist in a particular field if he nevertheless possesses the requisite knowledgenecessary to make a determination on the issues presented" (Joswick v Lenox Hill Hosp.,161 AD2d 352, 355 [1990]). Once the expert professes such knowledge, the issue of the expert'squalifications to render such opinion must be left to trial (id.; see also Ocasio-Gary vLawrence Hosp., 69 AD3d 403, 404-405 [2010]). To the extent that our prior holding in Browder v New York City Health & Hosps.Corp. (37 AD3d 375 [2007]) could be interpreted as imposing a stricter standard, wedecline to follow it. However, plaintiffs nonetheless failed to raise an issue of fact with theirexpert's affirmation (see 68 NY2d at 324-325; Abalola v Flower Hosp., 44 AD3d 522 [2007]; Feliz v Beth Israel Med. Ctr., 38 AD3d396 [2007]). In the affirmation, the expert failed to address the conclusion of defendants'experts that plaintiff exhibited no symptoms that should have caused defendant Novitch tosuspect osteomyelitis (see 37 AD3d at 376; [*2]Collymore v Montefiore Med. Ctr.,39 AD3d 237, 238 [2007]).
We have considered plaintiffs' remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam and Manzanet-Daniels, JJ.