Evans v New York & Presbyt. Hosp.

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Evans v New York & Presbyt. Hosp. 2021 NY Slip Op 00084 Decided on January 07, 2021 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 and Entered: January 07, 2021
Before: Manzanet-Daniels, J.P., Kapnick, Moulton, González, Scarpulla, JJ.
Index No. 24968/15E Appeal No. 12797 Case No. 2020-00015

[*1]Lorraine Elsie Evans, Plaintiff-Appellant,

v

The New York & Presbyterian Hospital et al., Defendants-Respondents.



Abraham, PLLC, New York (Joshua E. Abraham of counsel), for appellant.

Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondents.



Order, Supreme Court, Bronx County (George J Silver, J.), entered on or about August 1, 2019, which, to the extent appealed from as limited by the briefs, granted the cross motion of defendants Radu Lucian Sulica and New York Presbyterian Hospital for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

Defendants, through submission of an affidavit in which an expert head and neck surgeon averred that defendants' treatment of plaintiff comported with good and accepted medical practice, and that plaintiff's dental injury was a known risk of the procedure, set forth prima facie entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Plaintiff failed to adduce evidence in opposition, submitting only an attorney affidavit, and not the affidavit of an expert to rebut defendants' expert (see Mosberg v Elahi, 80 NY2d 941, 942 [1992]; Perez v New York City Health & Hosps. Corp., 81 AD3d 448 [1st Dept 2011]). Plaintiff's claims that her medical records were changed in some unspecified manner is speculative and unsupported (see Zuckerman v City of New York, 49 NY2d 557 [1980]); Unclaimed Prop. Recovery Serv., Inc. v Credit Suisse First Boston Corp., 172 AD3d 463 [1st Dept 2019], lv denied 34 NY3d 902 [2019]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: January 7, 2021