February 6, 2014
Maria Teresa Bacani, etc., et al., Plaintiffs-Appellants, -
Lisa Rosenberg, M.D., Defendant-Respondent, Deepak Nanda, M.D., et al., Defendants.
Bubb, Grogan & Cocca, LLP, New York (Christopher L. Deininger of counsel), for appellants.
Shaub, Ahmuty, Citrin & Spratt, LLP, New York (Gerard S. Rath of counsel), for respondent.
Sweeny, J.P., Andrias, Freedman, Richter, Clark, JJ.
Order, Supreme Court, New York County (Milton A. Tingling, J.), entered September 10, 2012, which, upon renewal, granted the motion of defendant Lisa Rosenberg, M.D. for summary judgment dismissing the complaint as against her, unanimously affirmed, without costs.
Plaintiff mother delivered a stillborn fetus 10 days after fetal demise was diagnosed in the 35th week of gestation. Defendant Rosenberg was plaintiff mother's obstetrician, and had referred the mother to Dr. Deepak Nanda, a perinatologist. In Bacani v Rosenberg (74 A.D.3d 500 [1st Dept 2010], lv denied 15 N.Y.3d 708 ), this Court dismissed the action as against Dr. Nanda, finding that plaintiffs had not raised a triable issue of fact as to whether Nanda departed from accepted medical practice, and whether such departure was a competent producing cause of the fetus's death (id. at 502-503); Rosenberg did not appeal from Supreme Court's denial of her motion for summary judgment.
Upon renewal, the motion court properly dismissed the action as against Rosenberg. As this Court previously found, the opinions of plaintiffs' expert, Dr. Harrigan, failed to raise a triable issue, and plaintiffs' submission of an attorney-drafted CPLR 3101(d) expert disclosure averring that an expert pathologist would testify concerning causation is not evidentiary proof in admissible form sufficient to defeat the subject motion for summary judgment (see e.g. Velasco v Green-Wood Cemetery, 48 A.D.3d 271, 272 [1st Dept 2008]). Furthermore, plaintiffs' argument that the claims against Nanda and Rosenberg differ is unavailing because, if Dr. Nanda was not negligent in failing to order additional testing, Dr. Rosenberg could not be negligent in failing to ask Dr. Nanda to order such testing.
We have considered plaintiffs' remaining contentions and find them unavailing.