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Otero v. Faierman

128 A.D.3d 499 Court N.Y. App. Div. Decision date 2015-05-14 English

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p. 499
Marcus Otero et al., Appellants, v Eial Faierman, M.D., et al., Respondents, et al., Defendant.
[9 NYS3d 244]

Judgment, Supreme Court, Bronx County (Stanley Green, J.), entered October 16, 2013, dismissing plaintiffs’ complaint as against defendants-respondents pursuant to an order, same court and Justice, entered September 17, 2013, which had granted defendants-respondents’ motions for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In this action, plaintiffs allege, among other things, that defendant doctors failed to diagnose an infection in plaintiff Marcus Otero’s right knee. Defendants made a prima facie showing that they did not depart from good and accepted medical practice. Defendants submitted evidence, including testimony from experts in infectious diseases, showing that the infection was not present while plaintiff sought treatment from them, and that plaintiff did not exhibit the symptomology of an infection during such treatment, but rather exhibited the symptoms of a mechanical injury caused by a fall reported by plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 , 324-325 [1986]).

p. 500
In opposition, plaintiff failed to submit evidence sufficient to raise a triable issue of fact (see Alvarez, 68 NY2d at 325 ). Plaintiffs expert’s opinion was conclusory and unsupported by competent evidence (see id.; see also Coronel v New York City Health & Hosps. Corp., 47 AD3d 456 , 457 [1st Dept 2008]). In particular, plaintiffs expert failed to address that plaintiff had no symptomology that would indicate an infection, as opposed to a mechanical issue, such as a fever, pain to the skin on light touch, or a change in skin color. In addition, the expert failed to support his assertion that the infection was present at the time of plaintiffs treatment with defendants (id.).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Friedman, J.P., Saxe, Richter and Manzanet-Daniels, JJ.

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