RODRIGUEZ v. Emily Kirschenbaum, et al., Defendants. (2006)

Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about January 13, 2005, which denied the motion by the Montefiore defendants, Mohan and Rubin for summary judgment, unanimously reversed, on the law, without costs, the motion granted and the complaint dismissed as against them.   The Clerk is directed to enter judgment accordingly.

Appellants made out a prima facie case by establishing that they did not commit medical malpractice in their treatment of plaintiff.   The burden then shifted to plaintiff to adduce admissible proof raising a triable issue of fact.   However, plaintiff's expert offered only conclusory assertions and mere speculation that her cancer would have been discovered earlier and would not have spread if appellants had more aggressively pursued her, and expedited and tracked her follow-up visits more actively (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Bullard v. St. Barnabas Hosp., 27 A.D.3d 206, 810 N.Y.S.2d 78 [2006];  DeFilippo v. New York Downtown Hosp., 10 A.D.3d 521, 523, 782 N.Y.S.2d 25 [2004] ).   Furthermore, in concluding that plaintiff's cancer should have been discovered by December 1998, plaintiff's expert improperly relied on information which could not have been known to plaintiff's doctors during the time they treated her (see Lederman v. Lawrence Hosp., 202 A.D.2d 198, 199-200, 607 N.Y.S.2d 948 [1994] ).