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Lewis-Burnett v. West Side Radiology Associates

Supreme Court of New York, First Department

May 28, 2013

Carla Lewis-Burnett, et al., Plaintiffs-Appellants,
v.
West Side Radiology Associates, Defendant-Respondent, Jane Doe, Defendant.

Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellants.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, New York (Samantha E. Quinn of counsel), for respondent.

Andrias, J.P., Renwick, Richter, Feinman, JJ.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered April 4, 2012, which granted defendant's motion for summary judgment dismissing the complaint in this medical malpractice action, unanimously affirmed, without costs.

Plaintiff alleged that she suffered, inter alia, a torn rotator cuff and a partial tear of the labrum due to improper positioning by defendant's technician during a routine mammography study, which resulted in weakness and other long-term injuries to her left arm and shoulder, and the need for corrective orthopedic surgical procedures. Defendant's expert, an orthopedic surgeon, opined that upon review of the operative findings attendant to plaintiff's surgeries, her injuries were the result of chronic, degenerative conditions, and were not caused by a traumatic incident. Plaintiffs failed to counter defendant's prima facie showing of entitlement to judgment as a matter of law, since they did not submit a medical expert's affidavit, or any other form of medical evidence which specifically disputed defendant's expert's opinion negating causation. Hence, plaintiffs failed to raise a triable issue of fact regarding causation, and the motion was properly granted (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324-325 [1986]; Frye v Montefiore Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]).


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