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Rivera v. Kleinman

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


November 10, 2009

GRETCHEN RIVERA, ETC., ET AL., PLAINTIFFS-APPELLANTS,
v.
PAUL G. KLEINMAN, M.D., ET AL., DEFENDANTS-RESPONDENTS.

Judgment, Supreme Court, Bronx County (Alan Saks, J.), entered January 6, 2009, summarily dismissing the complaint, 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.

Tom, J.P., Friedman, Nardelli, Buckley, Richter, JJ.

20965/05

Plaintiffs' expert stated that the infant patient's injury and pain resulted from orthopedic hardware installed by defendants during hip surgery, which caused a protuberance that eventually punctured the skin. Defendants had advised plaintiff mother that the hardware should be removed between 18 and 24 months after surgery. There was no relevant pain prior to that time, but thereafter, the pin began to protrude, causing pain. Since plaintiffs failed to have the prescribed removal procedure until 31/2 years after the installation surgery, their inaction became the superseding cause of the injury (see Merritt v Saratoga Hosp., 298 AD2d 802, 805 [2002]).

We have reviewed plaintiffs' remaining arguments and find them without merit.

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

20091110

© 1992-2009 VersusLaw Inc.



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