Browder v. New York City Health & Hospitals Corp.

Appellate Division of the Supreme Court of New York

Browder v. New York City Health & Hospitals Corp.

37 A.D.3d 375, 830 N.Y.S.2d 551

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 27, 2007

StatusPublished

Cited by10 cases

This text of 37 A.D.3d 375 (Browder v. New York City Health & Hospitals Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Browder v. New York City Health & Hospitals Corp., 37 A.D.3d 375, 830 N.Y.S.2d 551 (N.Y. Ct. App. 2007).

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Opinion

Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered November 21, 2005, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiffs purported expert was insufficient since it did not indicate either the affiant’s specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. [376]*376Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant’s expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiffs unpreserved spoliation argument.

We have considered plaintiff’s other contentions and find them unavailing. Concur—Saxe, J.E, Nardelli, Buckley, Gonzalez and Sweeny, JJ.

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Order, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered November 21, 2005, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In opposition to defendant’s prima facie showing based on the hospital records, the deposition testimony and the affirmation of an expert pediatric urologist with many years of experience in that field, plaintiff in this medical malpractice action failed to raise an issue of fact. The affirmation of plaintiffs purported expert was insufficient since it did not indicate either the affiant’s specialty or that he or she possessed the requisite background and knowledge to furnish a reliable opinion (cf. [376]*376Joswick v Lenox Hill Hosp., 161 AD2d 352, 354-355 [1990]). The affidavit was also insufficient since it failed to address the detailed affirmation of defendant’s expert, addressed the alleged departures from the standard of care and proximate cause only in conclusory terms, was contradicted by the record (see Wong v Goldbaum, 23 AD3d 277, 279-280 [2005]), was based on a hospital record notation whose source was unknown and thus inadmissible (see Quispe v Lemle & Wolff, Inc., 266 AD2d 95, 96 [1999]), and was otherwise lacking in evidentiary foundation. We decline to address plaintiffs unpreserved spoliation argument.

We have considered plaintiff’s other contentions and find them unavailing. Concur—Saxe, J.E, Nardelli, Buckley, Gonzalez and Sweeny, JJ.

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Bluebook (online)

37 A.D.3d 375, 830 N.Y.S.2d 551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/browder-v-new-york-city-health-hospitals-corp-nyappdiv-2007.

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