Opinion
12797 Index No. 24968/15E Case No. 2020-00015
01-07-2021
Lorraine Elsie EVANS, Plaintiff–Appellant, v. The NEW YORK AND 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.
Abraham, PLLC, New York (Joshua E. Abraham of counsel), for appellant.
Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for respondents.
Manzanet–Daniels, J.P., Kapnick, Moulton, González, Scarpulla, JJ.
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 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [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 N.Y.2d 941, 942, 590 N.Y.S.2d 866, 605 N.E.2d 353 [1992] ; Perez v. New York City Health & Hosps. Corp., 81 A.D.3d 448, 915 N.Y.S.2d 562 [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 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ); Unclaimed Prop. Recovery Serv., Inc. v. Credit Suisse First Boston Corp., 172 A.D.3d 463, 97 N.Y.S.3d 865 [1st Dept. 2019], lv denied 34 N.Y.3d 902, 2019 WL 5445966 [2019] ).