VENSON v. DAUN (2003)

Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered February 26, 2002, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In this medical malpractice action, defendants have met their burden as summary judgment proponents by submitting the testimony of defendant Dr. Daun that she acted promptly in response to the decedent's first complaint of breast pain in October 1989, and the detailed affirmation of defendant's expert, concluding that Dr. Daun's treatment of decedent between October 1989 and January 1990 did not depart from good and accepted medical practice and did not cause decedent's harm (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572).   The responding affidavit of plaintiff's expert was insufficient to raise a triable issue since it did not dispute the adequacy of the decedent's care between October 1989 and January 1990, but was instead premised on the demonstrably false supposition that decedent had complained of breast pain to Dr. Daun between June 28, 1988 and May 18, 1989.   The documentary evidence established conclusively that Dr. Daun had not treated decedent during that interval (see Weber v. City of New York, 24 A.D.2d 618, 619, 262 N.Y.S.2d 222, affd. 17 N.Y.2d 790, 270 N.Y.S.2d 759, 217 N.E.2d 839).