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Vera v. Montefiore Medical Center

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


March 3, 2009

WILLIAM VERA, ETC., PLAINTIFF-APPELLANT,
v.
MONTEFIORE MEDICAL CENTER, ET AL., DEFENDANTS-RESPONDENTS.

Appeal from order, Supreme Court, Bronx County (Stanley Green, J.), entered April 18, 2007, which granted upon renewal defendant Montefiore's motion for summary judgment, deemed to be an appeal from the subsequent judgment (CPLR 5501[c]), entered July 11, 2007, dismissing the complaint, and as so considered, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Andrias, J.P., Friedman, Buckley, Catterson, Acosta, JJ.

22539/00

In alleging medical malpractice resulting in personal injury and wrongful death, plaintiff asserted that Montefiore and its physicians were negligent in failing to timely diagnose and treat cancer in decedent's left breast, and later in her right breast. The medical records submitted on the renewal motion, along with the affirmation submitted by defendants' expert (which was identical to the opinion of a different expert on the original motion), established the following: that decedent's left breast cancer did not transform into another type of cancer and then metastasize to the right breast or right axillary nodes, resulting in her death; that the timing of the diagnosis of a benign lesion in one area of a breast did not impact a later discovery of a malignant lesion in a different area of the same breast; and that a two-month delay between diagnosis and removal of a malignancy did not impact decedent's prognosis. In response, plaintiff failed to raise a triable issue of fact, as the affidavits from his experts set forth only general conclusions, misstatements of evidence and unsupported assertions, which were insufficient to demonstrate that defendants had failed to comport with accepted medical practice, or that any such failure was the proximate cause of decedent's injuries (Coronel v New York City Health & Hosps. Corp., 47 AD3d 456 [2008]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090303

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