Rivera v Kleinman

Rivera v Kleinman 2009 NY Slip Op 08077 [67 AD3d 482] November 10, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 6, 2010

Gretchen Rivera et al., Appellants,
v
Paul G. Kleinman, M.D., et al., Respondents.

—[*1] The Pagan Law Firm, P.C., New York (Tania M. Pagan of counsel), for appellants.

McAloon & Friedman, P.C., New York (Timothy J. O'Shaughnessy of counsel), for Paul G. Kleinman, M.D. and Carl Wilson, M.D., respondents.

Garbarini & Scher, P.C., New York (Thomas M. Cooper of counsel), for Claire Bello, M.D., K. Curo, P.A. and St. Barnabas Hospital, respondents.

Judgment, Supreme Court, Bronx County (Alan Saks, J.), entered January 6, 2009, summarily dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs' expert stated that the infant patient's injury and pain resulted from orthopedic hardware installed by defendants during hip surgery, which caused a protuberance that eventually punctured the skin. Defendants had advised plaintiff mother that the hardware should be removed between 18 and 24 months after surgery. There was no relevant pain prior to that time, but thereafter, the pin began to protrude, causing pain. Since plaintiffs failed to have the prescribed removal procedure until 3½ years after the installation surgery, their inaction became the superseding cause of the injury (see Merritt v Saratoga Hosp., 298 AD2d 802, 805 [2002]).

We have reviewed plaintiffs' remaining arguments and find them without merit. Concur—Tom, J.P., Friedman, Nardelli, Buckley and Richter, JJ.