Opinion
February 20, 1996
Appeal from the Supreme Court, Westchester County (Colabella, J.).
Ordered that the order is affirmed, with costs.
The injured plaintiff, who was born two months premature in 1973 currently suffers from profound mental retardation, cerebral palsy, and quadriplegia spasticity, all of which are permanent and require around-the-clock supervision. This action was brought, inter alia, against the estates of the obstetricians who treated the injured plaintiff's mother, Lawrence Hospital (hereinafter Lawrence) — where the injured plaintiff was delivered and spent the first three days of his life, and Jerome Strachman — the injured plaintiff's pediatrician during his stay at Lawrence.
A motion for summary judgment was granted in favor of Lawrence by the Supreme Court, which found that there was no issue of fact as to whether Lawrence's alleged negligence, a failure to weigh the baby daily, was a proximate cause of the brain damage the injured plaintiff suffered.
The Supreme Court correctly dismissed this complaint insofar as asserted against the defendant Lawrence based on the injured plaintiff's failure to raise a triable issue of fact as to whether Lawrence's actions were a proximate cause of his injuries. The affidavit of the plaintiffs' expert, which contained conclusory assertions that the injured plaintiff's injuries were the result of improper nourishment, hydration, and inadequate oxygen therapy, failed to meet the plaintiffs' burden of supplying proof sufficient to rebut the affidavit of a neonatalist offered by Lawrence stating his opinion and the factual bases therefor, that the nature and extent of injured plaintiff's disability could not have resulted from the post-birth care of the hospital ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Fileccia v Massapequa Gen. Hosp., 63 N.Y.2d 639; Vogel v. Palmieri, 221 A.D.2d 522; Muscatello v. City of New York, 215 A.D.2d 463; Jederlinic v. Arya, 209 A.D.2d 586; Toledo v. Ordway, 208 A.D.2d 518; Dachille v. Good Samaritan Hosp., 207 A.D.2d 373). Rosenblatt, J.P., Miller, Thompson and Joy, JJ., concur.