Milian v Bailyn

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Milian v Bailyn 2019 NY Slip Op 08538 Decided on November 26, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 26, 2019
Mazzarelli, J.P., Kapnick, Gesmer, Moulton, JJ.
10450 26973/15E

[*1] Charles R. Milian, et. al., Plaintiffs-Appellants,

v

Douglas H. Bailyn, M.D., et. al., Defendants-Respondents.



Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Aaronson Rappaport Feinstein & Deutsch, LLP, New York (Steven C. Mandell of counsel), for respondents.



Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered August 2, 2018, which, to the extent appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff Charles Milan alleges that defendant Douglas H. Bailyn, M.D., was negligent in failing to timely refer him to a urologist and that the delay proximately caused his prostate cancer to worsen and resulted in him having to undergo a radical prostatectomy.

We affirm on the ground that plaintiffs did not raise an issue of fact as to whether Milian's injuries were caused by defendants' alleged negligence. Defendants' expert's affirmation establishes that any delay in diagnosis on defendants' part did not worsen plaintiff Milian's prognosis (cf. Dallas-Stephenson v Waisman, 39 AD3d 303, 307 [1st Dept 2007]). The affirmation of plaintiffs' expert is not supported with any scientific data or other medical facts sufficient to rebut defendants' prima facie showing (see Colwin v Katz, 122 AD3d 523, 524 [1st Dept 2014]; McCarthy v St. Joseph's Med. Ctr., 16 AD3d 243, 244 [1st Dept 2005]; see also De Jesus v Mishra, 93 AD3d 135, 138 [1st Dept 2012]).

We have considered the parties' remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 26, 2019

DEPUTY CLERK