Limmer v Rosenfeld

Limmer v Rosenfeld 2012 NY Slip Op 01500 Decided on February 28, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 28, 2012
Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.
6915 303380/08

[*1]Louis Limmer, et al., Plaintiffs-Appellants,

v

Nathan S. Rosenfeld, M.D., Defendant, The Winifred Masterson Burke Rehabilitation Hospital, Inc., et al., Defendants-Respondents.




Philip Newman, Bronx, for appellants.
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, which granted 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 medical practice in their treatment of plaintiff Louis Limmer (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). Plaintiff failed to rebut this showing. Initially, we note that the court erred in rejecting the affirmation of plaintiff's expert on the grounds, inter alia, that the expert had not demonstrated "his expertise or familiarity in treating this kind of [infection] . . . " "[A] physician need not be a specialist in a particular field if he nevertheless possesses the requisite knowledge necessary 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's qualifications to render such opinion must be left to trial (id.; see also Ocasio-Gary v Lawrence 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, we decline to follow it. However, plaintiffs nonetheless failed to raise an issue of fact with their expert's affirmation (see id. at 324-325; Abalola v Flower Hosp., 44 AD3d 522 [2007]; Feliz v Beth Israel Med. Ctr., 38 AD3d 396 [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 to suspect osteomyelitis (see id. at 376; [*2]Collymore v Montefiore Med. Ctr., 39 AD3d 237, 238 [2007]).

We have considered plaintiffs' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK