Opinion
2012-02-28
Louis LIMMER, et al., Plaintiffs–Appellants, v. Nathan S. ROSENFELD, M.D., Defendant,The Winifred Masterson Burke Rehabilitation Hospital, Inc., et al., Defendants–Respondents.
Philip Newman, Bronx, for appellants. Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Rory L. Lubin of counsel), for respondents.
Philip Newman, Bronx, for appellants. Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains (Rory L. Lubin of counsel), for respondents.
MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Supreme Court, Bronx County (Robert E. Torres, J.), entered May 17, 2011, which granted defendants The Winifred Masterson Burke Rehabilitation Hospital, Inc. and Richard S. Novitch's (defendants) motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.
Defendants established prima facie that they did not depart from good and accepted medical practice in their treatment of plaintiff Louis Limmer ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). Plaintiff failed to rebut this showing. Initially, we note that the court erred in rejecting the affirmation of plaintiff's expert on the grounds, inter alia, that the expert had not demonstrated “his expertise or familiarity in treating this kind of [infection] ...” “[A] physician need not be a specialist in a particular field if he nevertheless possesses the requisite knowledge necessary to make a determination on the issues presented” ( Joswick v. Lenox Hill Hosp., 161 A.D.2d 352, 355, 555 N.Y.S.2d 104 [1990] ). Once the expert professes such knowledge, the issue of the expert's qualifications to render such opinion must be left to trial ( id.; see also Ocasio–Gary v. Lawrence Hosp., 69 A.D.3d 403, 404–405, 894 N.Y.S.2d 11 [2010] ). To the extent that our prior holding in Browder v. New York City Health & Hosps. Corp., 37 A.D.3d 375, 830 N.Y.S.2d 551 [2007] could be interpreted as imposing a stricter standard, we decline to follow it. However, plaintiffs nonetheless failed to raise an issue of fact with their expert's affirmation ( see id. at 324–325, 830 N.Y.S.2d 551; Abalola v. Flower Hosp., 44 A.D.3d 522, 843 N.Y.S.2d 615 [2007]; Feliz v. Beth Israel Med. Ctr., 38 A.D.3d 396, 833 N.Y.S.2d 23 [2007]. In the affirmation, the expert failed to address the conclusion of defendants' experts that plaintiff exhibited no symptoms that should have caused defendant Novitch to suspect osteomyelitis ( see id. at 376, 830 N.Y.S.2d 551; Collymore v. Montefiore Med. Ctr., 39 A.D.3d 237, 238, 833 N.Y.S.2d 438 [2007] ).
We have considered plaintiffs' remaining contentions and find them unavailing.