Browder v New York City Health & Hosps. Corp.

Browder v New York City Health & Hosps. Corp. 2007 NY Slip Op 01627 [37 AD3d 375] February 27, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, April 11, 2007

Eric Browder, an Infant, by His Mother and Natural Guardian, Patricia Browder, et al., Appellants,
v
New York City Health and Hospitals Corporation, Respondent.

—[*1] Peter E. Tangredi & Associates, White Plains (Denise O'Connor of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York (Kristin M. Helmers of counsel), for respondent.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered November 21, 2005, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendant's prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiff's purported expert was insufficient since it did not indicate either the affiant's specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant's expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiff's unpreserved spoliation argument. [*2]

We have considered plaintiff's other contentions and find them unavailing. Concur—Saxe, J.P., Nardelli, Buckley, Gonzalez and Sweeny, JJ.