Fleming v. Pedinol Pharmacal, Inc.

70 A.D.3d 422, 893 N.Y.S.2d 551

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 2010
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered December 2, 2008, which granted defendants’ motion for partial summary judgment dismissing the cause of action for wrongful death and so much of the cause of action for personal injuries as seeks to recover damages for pain and suffering experienced after November 4, 2004, unanimously affirmed, without costs.

Defendants made a prima facie showing entitling them to summary judgment dismissing the cause of action for wrongful death based on plaintiffs decedent’s medical records, the deposition testimony of the decedent’s treating physician, and the affirmation of a vascular surgeon (see Browder v New York City Health & Hosps. Corp., 37 AD3d 375 [2007]). In response, plaintiff failed to raise a triable issue of fact. While plaintiffs expert sufficiently demonstrated his expertise to render an opinion (see Ocasio-Gary v Lawrence Hosp., 69 AD3d 403, 404-405 [1st Dept, Jan. 5, 2010]), his affirmation did not address the deposition testimony of the decedent’s treating physician and the affirmation of defendant’s expert regarding the decedent’s underlying medical conditions, and his opinion as to proximate cause was conclusory and contradicted by the record (see Browder, supra).

Since the decedent had stopped using defendants’ allegedly harmful medicinal creams prior to November 4, 2004, by which time his initial skin wounds had healed, the claim for pain and suffering was properly limited to the period beginning with the decedent’s first use of the creams and ending November 4, 2004.

We have considered plaintiffs remaining contentions and find them unavailing. Concur—Gonzalez, P.J., Saxe, McGuire, Manzanet-Daniels and Román, JJ.