II v. The New York and Presbyterian Hospital, Defendant–Appellant, Weil Cornell Medical Center, et al., Defendants.  Index No. (2021)

E

Case No.2019–2975

Keller, O'Reilly & Watson, P.C., Woodbury (Patrick J. Engle of counsel), for appellant.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered March 4, 2019, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint as against defendant New York and Presbyterian Hospital, unanimously reversed, on the law, without costs, and the motion granted.

Defendant's motion for summary judgment dismissing the complaint should have been granted on the ground that defendant established, through the affidavits of its experts, that plaintiff's claimed injuries were not causally related to the alleged incident but were preexisting and degenerative.  In opposition, plaintiff failed to raise an issue of fact as his expert orthopedic surgeon did not actually opine that plaintiff's claimed injuries were causally related to the incident;  he said only that it was “very unlikely” that they preexisted the incident, which is insufficient (see Ann JJ. v Schenectady Assn. for Retarded Citizens, 59 AD3d 772, 773 [3d Dept 2009] ).  The orthopedic surgeon also did not address the degenerative findings in the medical records on which he relied in forming his opinion (see Gjoleka v. Caban, 188 AD3d 458, 458–459 [1st Dept 2020];  see also Kaplan v. Hamilton Med. Assoc., 262 A.D.2d 609, 610 [2d Dept 1999] ).  As defendant established its prima facie entitlement to summary judgment and plaintiff has not raised an issue of fact or interposed any opposition to the appeal, defendant's motion should be granted.