Opinion
CA 03-00299
October 2, 2003.
Appeals from an order of Supreme Court, Erie County (Fahey, J.), entered July 29, 2002, which denied the motions of defendants Sisters Hospital, Sisters Health Group, Sanford H. Levy, M.D. and Timothy J. Collard, M.D. and the cross motion of defendant Richard Kessler, M.D. seeking summary judgment dismissing the complaint against them.
ANDREWS, BERNSTEIN MARANTO, LLP, BUFFALO (ANDREW D. FANIZZI OF COUNSEL), FOR DEFENDANTS-APPELLANTS SISTERS HOSPITAL, SISTERS HEALTH GROUP, AND SANFORD H. LEVY, M.D.
DAMON MOREY LLP, BUFFALO (MICHAEL J. WILLETT OF COUNSEL), FOR DEFENDANT-APPELLANT RICHARD KESSLER, M.D.
GIBSON, McASKILL CROSBY, LLP, BUFFALO (SALLY J. BROAD OF COUNSEL), FOR DEFENDANT-APPELLANT TIMOTHY J. COLLARD, M.D.
ROY J. CARLISI, BUFFALO, FOR PLAINTIFFS-RESPONDENTS.
PRESENT: GREEN, J.P., PINE, WISNER, AND HAYES, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by granting the motions of defendants Sisters Hospital, Sisters Health Group, Sanford H. Levy, M.D. and Timothy J. Collard, M.D. and the cross motion of defendant Richard Kessler, M.D. and dismissing the complaint against those defendants and as modified the order is affirmed without costs.
Memorandum:
Supreme Court erred in denying the motions of Sisters Hospital, Sisters Health Group, Sanford H. Levy, M.D. and Timothy J. Collard, M.D. and the cross motion of Richard Kessler, M.D. (collectively, defendants) seeking summary judgment dismissing the complaint against them. This medical malpractice action is based upon the allegation that a delay in diagnosing the wrist fracture sustained by plaintiff Louis P. Gonzalez resulted in arthritis. Defendants established their entitlement to judgment as a matter of law by presenting expert medical proof that, despite the alleged delay in diagnosis, the fracture healed without complications. In response, plaintiffs failed to raise a triable issue of fact. The affidavit of plaintiffs' medical expert assumed facts not supported by evidence ( see Mendez v. City of New York, 295 A.D.2d 487, 488) inasmuch as his opinion is based on the unsworn medical records of the physician who diagnosed the arthritis ( see Grasso v. Angerami, 79 N.Y.2d 813; Phillipe v Ivory, 297 A.D.2d 666; Romatowski v. Hitzig, 227 A.D.2d 870, 871, lv dismissed in part and denied in part 89 N.Y.2d 915; Fridovich v. David, 208 A.D.2d 1004, lv dismissed 86 N.Y.2d 759, rearg dismissed 86 N.Y.2d 839).
In any event, we further note with respect to the cross motion that Dr. Kessler established that he did not deviate as a radiologist from accepted community standards of medical care in his interpretation of the emergency room x-rays, and plaintiffs failed to raise a triable issue of fact. Absent from plaintiffs' opposing papers is any proof that Dr. Kessler's responsibilities extended beyond the interpretation of the x rays, and plaintiffs do not dispute that the x rays were interpreted properly. Thus, the cross motion should have been granted for that reason as well ( see Fileccia v Massapequa Gen. Hosp., 99 A.D.2d 796, affd 63 N.Y.2d 639).
We therefore modify the order by granting the motions and cross motion and dismissing the complaint against defendants.