ABALOLA v. FLOWER HOSPITAL (2007)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered November 17, 2006, which denied defendant's motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted.   The Clerk is directed to enter judgment in favor defendants dismissing the complaint.

 Defendant made a prima facie case of entitlement to summary judgment by submitting an affirmation of a medical expert establishing that defendant had rendered acceptable medical care to plaintiff's decedent.   In response, plaintiff submitted evidence insufficient to raise a triable issue of fact, as the affirmation of plaintiff's physician not only failed to controvert a number of points in defendant's expert affirmation, but also was conclusory and devoid of analysis or reference to scientific data (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  DeCintio v. Lawrence Hosp., 33 A.D.3d 329, 821 N.Y.S.2d 587 [2006];  Ramirez v. Columbia-Presbyterian Med. Ctr., 16 A.D.3d 238, 790 N.Y.S.2d 606 [2005] ).   Plaintiff's physician expert also improperly raised, for the first time in opposition to the summary judgment motion, a new theory of liability regarding the treatment of plaintiff's decedent that had not been set forth in the complaint or bills of particulars (see Golubov v. Wolfson, 22 A.D.3d 635, 801 N.Y.S.2d 914 [2005];  Winters v. St. Vincent's Med. Ctr. of Richmond, 273 A.D.2d 465, 711 N.Y.S.2d 892 [2000] ).   The affidavit of plaintiff's nurse expert was similarly conclusory, and offered medical opinions and conclusions that the expert was not competent to render (see Elliot v. Long Island Home, Ltd., 12 A.D.3d 481, 482, 784 N.Y.S.2d 615 [2004];  Mills v. Moriarty, 302 A.D.2d 436, 754 N.Y.S.2d 901 [2003], lv. denied 100 N.Y.2d 502, 760 N.Y.S.2d 765, 790 N.E.2d 1194 [2003] ).

We need not reach defendant's remaining contentions in light of our determination.