STEWART v. [And a Third-Party Action]. (2004)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about September 22, 2003, which, in this medical malpractice action, inter alia, granted the cross motion of defendants New York Medical Group, P.C., Dr. Robert Cardone and Dr. Adolpho Ayuyao for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

 Defendants-respondents doctors were consulted by plaintiff's decedent respecting a growth on her arm.   Both doctors recommended that the growth be either excised or biopsied and scheduled such procedures.   Although the decedent, without explanation, did not appear for the excision procedure scheduled by defendant doctor Cardone, the growth was subsequently biopsied by defendant doctor Ayuyao and eventually determined to be malignant.   The expert affidavit submitted by defendant doctors in support of their motion suffices to demonstrate prima facie that they did not commit malpractice in treating plaintiff's decedent, particularly in view of the fact that decedent failed to heed defendant doctors' advice to obtain an immediate biopsy and canceled the procedure scheduled by Dr. Cardone who never saw her again.   Furthermore, the record does not permit the inference necessary to sustain this malpractice action that the brief delays occasioned by defendants' alleged departures had any effect on decedent's lifespan.   No triable issue was raised in this regard by the unexplained assertions of plaintiff's expert that the decedent's life was shortened by the complained-of delays (see DeFilippo v. The New York Downtown Hosp., 10 A.D.3d 521, 782 N.Y.S.2d 25 [2004];  Candia v. Estepan, 289 A.D.2d 38, 734 N.Y.S.2d 37 [2001];  cf. Leibowitz v. Mt. Sinai Hosp., 296 A.D.2d 340, 745 N.Y.S.2d 166 [2002] ).