Otero v Faierman

Otero v Faierman 2015 NY Slip Op 04215 Decided on May 14, 2015 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 May 14, 2015
Friedman, J.P., Saxe, Richter, Manzanet-Daniels, JJ.
15114 303702/07

[*1] Marcus Otero, et al., Plaintiffs-Appellants,

v

Eial Faierman, M.D., et al., Defendants-Respondents, Center for Orthopaedic Surgery, LLP, doing business as Center for Orthopaedic Surgery & Sports Medicine, Defendant.

Suckle Schlesinger PLLC, New York (Howard A. Suckle of counsel), for appellants.

Wilson Elser Moskowitz Edelman & Dicker LLP, White Plains (Milan P. Spisek of counsel), for Eial Faierman, M.D., respondent.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Steven C. Mandell of counsel), for Louis C. Rose, M.D. and Throgs Neck Multi Care, P.C., respondents.

Bartlett, McDonough & Monaghan, LLP, Mineola (Robert G. Vizza of counsel), for Sandeep Gupta, M.D. and Throgs Neck Urgent Medical Care, P.C., respondents.

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered October 16, 2013, dismissing plaintiffs' complaint as against defendants-respondents pursuant to an order, same court and Justice, entered September 17, 2013, which had granted defendants-respondents' motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In this action, plaintiffs allege, among other things, that defendant doctors failed to diagnose an infection in plaintiff Marcus Otero's right knee. Defendants made a prima facie showing that they did not depart from good and accepted medical practice. Defendants submitted evidence, including testimony from experts in infectious diseases, showing that the infection was not present while plaintiff sought treatment from them, and that plaintiff did not exhibit the symptomology of an infection during such treatment, but rather exhibited the symptoms of a mechanical injury caused by a fall reported by plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320, 324-325 [1986]).

In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez, 68 NY2d at 325). Plaintiff's expert's opinion was conclusory and unsupported by competent evidence (see id.; see also Coronel v New York City Health & Hosps. Corp., 47 AD3d 456, 457 [1st Dept 2008]). In particular, plaintiff's expert failed to address that plaintiff had no symptomology that would indicate an infection, as opposed to a mechanical issue, such as a fever, pain to the skin on light touch, or a change in skin color. In addition, the expert failed to support his assertion that the infection was present at the time of plaintiff's treatment with [*2]defendants (id.).

We have considered plaintiff's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 14, 2015

CLERK