WALKER v. Catholic Health System, doing business as Sisters Hospital of Buffalo, Defendant–Respondent. (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  In this medical malpractice action, plaintiff appeals from an order that, inter alia, granted the motion of defendant Catholic Health System, doing business as Sisters Hospital of Buffalo (Sisters), for summary judgment dismissing the second amended complaint against it.  We affirm.

Contrary to plaintiff's contention, Sisters met its initial burden on the motion by submitting the affirmation of its expert physician, who addressed each of the specific factual allegations of negligence raised in the second amended complaint and bill of particulars (see Isensee v. Upstate Orthopedics, LLP, 174 A.D.3d 1520, 1521, 103 N.Y.S.3d 342 [4th Dept. 2019]).  Plaintiff's challenge to the qualifications of Sisters' expert is unpreserved inasmuch as she failed to object to the alleged deficiency before Supreme Court, and she may not raise that issue for the first time on appeal (see generally White v. Bajwa, 161 A.D.3d 1513, 1516, 75 N.Y.S.3d 749 [4th Dept. 2018];  Matter of McKeown [Image Collision, Ltd.], 94 A.D.3d 1445, 1447, 942 N.Y.S.2d 715 [4th Dept. 2012];  Kibler v. Gillard Constr., Inc., 53 A.D.3d 1040, 1042, 863 N.Y.S.2d 306 [4th Dept. 2008]).  Inasmuch as Sisters met its initial burden, the burden shifted to plaintiff to raise a triable issue of fact in opposition (see Groff v. Kaleida Health, 161 A.D.3d 1518, 1520, 76 N.Y.S.3d 714 [4th Dept. 2018];  Chillis v. Brundin, 150 A.D.3d 1649, 1650, 54 N.Y.S.3d 479 [4th Dept. 2017]).

We conclude that plaintiff's expert failed to refute the conclusions of Sisters' expert with respect to plaintiff's claims.  Rather, plaintiff's opposition contained new theories of liability that were not included in the second amended complaint or bill of particulars and thus could not be used to defeat Sisters' motion (see DeMartino v. Kronhaus, 158 A.D.3d 1286, 1287, 71 N.Y.S.3d 277 [4th Dept. 2018];  see also Iodice v. Giordano, 170 A.D.3d 971, 972, 96 N.Y.S.3d 360 [2d Dept. 2019];  Stewart v. Dunkleman, 128 A.D.3d 1338, 1341, 8 N.Y.S.3d 515 [4th Dept. 2015], lv denied 26 N.Y.3d 902, 2015 WL 5125616 [2015]).  Therefore, plaintiff failed to raise a triable issue of fact, and the court properly granted Sisters' motion (see Chillis, 150 A.D.3d at 1651, 54 N.Y.S.3d 479).

In light of our determination, plaintiff's remaining contentions are academic.