Waters v Mount Sinai School of Medicine-Mount Sinai Hosp.

Waters v Mount Sinai School of Medicine-Mount Sinai Hosp. 2007 NY Slip Op 01946 [38 AD3d 257] March 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, May 9, 2007

Robert Waters et al., Appellants,
v
Mount Sinai School of Medicine-The Mount Sinai Hospital et al., Respondents.

—[*1] Scott & Liburd, New York (Kofi D. Scott of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Richard E. Lerner of counsel), for respondents.

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered September 22, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants in this medical malpractice and wrongful death action established, in their motion, a prima facie case that they adhered to accepted standards of medical practice in treating the infant. The burden then shifted to plaintiffs, whose response consisted only of speculation, thus failing to raise any genuine material issues of fact (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [2006]). Speculation is not a substitute for competent evidence even in an action for wrongful death (Agius v State of New York, 50 AD2d 1049, 1050 [1975]). Concur—Andrias, J.P., Friedman, Sullivan, Williams and Catterson, JJ.