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6824a-Mirta E. Ramirez, As Executrix of the Estate of Narciza Torres v. Alcedo Cruz

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 16, 2012

6824A-MIRTA E. RAMIREZ, AS EXECUTRIX OF THE ESTATE OF NARCIZA TORRES,
PLAINTIFF-APPELLANT,
v.
ALCEDO CRUZ, M.D., ET AL.,
DEFENDANTS-RESPONDENTS, FORDHAM MEDICAL COMPLEX, ET AL.,
DEFENDANTS.

Ramirez v Cruz

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.

Decided on February 16, 2012

Freedman, J.P., Sweeny, Renwick, DeGrasse, Roman, JJ.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered January 11, 2011, which, to the extent appealed from, granted the motion of defendant Alcedo Cruz, M.D. for summary judgment dismissing the complaint, unanimously affirmed, without costs. Judgments (same court and Justice), entered February 7, 2011, dismissing the complaint against defendants Francisco Bautista, M.D. and Robert Plummer, M.D., unanimously affirmed, without costs. Appeal from the order entered January 11, 2011, to the extent it granted Dr. Bautista's and Dr. Plummer's motions for summary judgment dismissing the complaint, unanimously dismissed, without costs, as subsumed in the appeals from the judgments.

In this medical malpractice action, plaintiff, as executrix of the estate of Narciza Torres, alleges that defendants-respondents doctors departed from good and accepted medical practice by failing to timely diagnose Torres with colon cancer, which had metastatized to her liver and caused her death. Defendants-respondents met their prima facie showing that they did not depart from good and accepted practice by submitting their deposition testimony, plaintiff's hospital and medical records, and their detailed affidavits showing that their treatment of plaintiff complied with good and accepted standards of medical practice (see Joyner-Pack v Sykes, 54 AD3d 727, 729 [2008]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]).

Plaintiff failed to raise triable issues of fact. The expert affidavit of her hematologist/oncologist stating that defendants deviated from good and accepted practice lacked supporting facts and, therefore, was conclusory (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). The expert affidavit of her internist/gastroenterologist, whose name has been redacted, was similarly conclusory, and also was flawed by its misstatements of the evidence and unsupported assertions (see Wong v Goldbaum, 23 AD3d 277 [2005]).

We have reviewed the remaining contentions and find them to be unavailing.

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

ENTERED: FEBRUARY 16, 2012

CLERK

20120216

© 1992-2012 VersusLaw Inc.



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