Vossler v. Amin

175 A.D.2d 570

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 12, 1991
• Status: Published

Opinion

— Order modified on the law and as modified affirmed with costs to defendants Amin and Cuba Memorial Hospital, in accordance with the following Memorandum: Supreme Court erred in denying defendants Amin and Cuba Memorial Hospital (Hospital) summary judgment dismissing plaintiffs’ complaint. Plaintiff Leo Vossler alleges that he suffered physical and psychic injury as a result of a two-month delay in diagnosis of his lung cancer. Defendants established by competent medical proof that plaintiff Leo Vossler had suffered no injury caused by the purported delay. Plaintiffs failed to offer any competent medical proof demonstrating that plaintiff Leo Vossler’s medical condition had been adversely affected by any delay in diagnosis and treatment. Thus, defendants’ contention that plaintiff Leo Vossler did not suffer a physical injury must be resolved, as a matter of law, in their favor (see also, Dodes v North Shore Univ. Hosp., 149 AD2d 455; Hryniak v Littauer Hosp. Assn., 86 AD2d 699). In addition, plaintiff Leo Vossler’s assertion of psychic injury, without any claim of physical injury, does not, in the circumstances of this case, state a cognizable cause of action (see, Lancellotti v Howard, 155 AD2d 588; Green v Leibowitz, 118 AD2d 756). Finally, because defendants are not liable to plaintiff Leo Vossler, plaintiff Mary Ann Vossler’s derivative cause of action also must be dismissed (see, Allen v County of Westchester, 172 AD2d 471; Siskind v Norris, 152 AD2d 196, 198, lv dismissed 76 NY2d 772; see also, Liff v Schildkrout, 49 NY2d 622). Accordingly, the order of Supreme Court is modified to dismiss the complaint against defendants Amin and the Hospital, and, as modified, is affirmed.

All concur, except Dillon, P. J., who dissents in part and votes to affirm for reasons stated in decision at Supreme Court, Gossel, J. (Appeals from Order of Supreme Court, Allegany County, Gossel, J. — Summary Judgment.) Present— Dillon, P. J., Doerr, Lawton, Lowery and Davis, JJ.