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Giampa v. Shelton

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 5, 2009

SLOAN GIAMPA, PLAINTIFF-APPELLANT,
v.
MARVIN L. SHELTON, M.D., P.C., ET AL., DEFENDANTS-RESPONDENTS.

Judgment, Supreme Court, New York County (Judith J. Gische, J.), entered May 29, 2008, dismissing the complaint, pursuant to an order, same court and Justice, entered April 29, 2008, which granted defendants' motions for summary judgment, unanimously affirmed, without costs. Appeal from the aforesaid order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

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.

Sweeny, J.P., Buckley, Catterson, Acosta, Freedman, JJ.

104070/04

Medical experts' affirmations established prima facie that the treatment provided by defendants to the injured plaintiff following the surgery on her ankle comported with good and accepted practice. In opposition, plaintiff submitted the conclusory affirmation of an expert who did not address the specific assertions of defendants' experts, particularly with respect to the issues of malpractice and causation (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Ramirez v Columbia-Presbyterian Med. Ctr., 16 AD3d 238 [2005]), and whose ultimate assertions were speculative or unsupported by any evidentiary foundation (see (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Wong v Goldbaum, 23 AD3d 277, 279 [2005]).

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

20091105

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