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Fleming v. Pedinol Pharmacal

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


February 4, 2010

SHIRLEY FLEMING, ETC., ET AL., PLAINTIFFS-APPELLANTS.
v.
PEDINOL PHARMACAL, INC., ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered December 2, 2008, which granted defendants' motion for partial summary judgment dismissing the cause of action for wrongful death and so much of the cause of action for personal injuries as seeks to recover damages for pain and suffering experienced after November 4, 2004, 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.

Gonzalez, P.J., Saxe, McGuire, Manzanet-Daniels, RomÁn, JJ.

8021/05

Defendants made a prima facie showing entitling them to summary judgment dismissing the cause of action for wrongful death based on plaintiff's decedent's medical records, the deposition testimony of the decedent's treating physician, and the affirmation of a vascular surgeon (see Browder v New York City Health & Hosps. Corp., 37 AD3d 375 [2007]). In response, plaintiff failed to raise a triable issue of fact. While plaintiff's expert sufficiently demonstrated his expertise to render an opinion (see Ocasio-Gary v Lawrence Hosp., __ AD3d __, 2010 NY Slip Op 00003, *3 [1st Dept, Jan. 5, 2010]), his affirmation did not address the deposition testimony of the decedent's treating physician and the affirmation of defendant's expert regarding the decedent's underlying medical conditions, and his opinion as to proximate cause was conclusory and contradicted by the record (see Browder, supra).

Since the decedent had stopped using defendants' allegedly harmful medicinal creams prior to November 4, 2004, by which time his initial skin wounds had healed, the claim for pain and suffering was properly limited to the period beginning with the decedent's first use of the creams and ending November 4, 2004.

We have considered plaintiff's remaining contentions and find them unavailing.

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

20100204

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