MULROE v. Jack Kaufman, D.D.S., Defendant. (2022)

Order, Supreme Court, New York County (John J. Kelley, J.), entered on or about December 14, 2020, which, to the extent appealed from, denied defendants The New York Presbyterian Hospital, David Kutler, M.D. and Joel Freidman, D.D.S.’s (defendants) motion for summary judgment dismissing the negligence and medical malpractice claims as against them, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment dismissing the complaint as against said defendants.

Defendants made a prima facie showing of entitlement to summary judgment through their expert, who averred that defendants’ treatment of plaintiff was within the standard of care and any difficulties with the treatment were caused by plaintiff's underlying cancer.  Plaintiffs’ expert failed to address that opinion, and thus failed to rebut defendants’ showing of entitlement to summary judgment (see Abalola v. Flower Hosp., 44 A.D.3d 522, 522, 843 N.Y.S.2d 615 [1st Dept. 2007];  Sternberg v. Rugova, 162 A.D.3d 456, 78 N.Y.S.3d 325 [1st Dept. 2018]).  Instead, the expert took the position that plaintiff never had cancer, a fact contradicted by the record (see Bartolacci–Meir v. Sassoon, 149 A.D.3d 567, 572, 50 N.Y.S.3d 395 [1st Dept. 2017];  Browder v. New York City Health & Hosps. Corp., 37 A.D.3d 375, 376, 830 N.Y.S.2d 551 [1st Dept. 2007]).  While plaintiff's cancer had an unusual presentation, and pathologists initially disagreed as to whether she had an invasive jaw cancer, she was ultimately successfully treated by oncologists with surgery, radiation, and gene therapy.  Plaintiffs’ expert entirely ignored plaintiff's treatment from 2016 to 2017 for a rare variant of squamous cell carcinoma, as well as her 2018 treatment for a reoccurrence (see Montilla v. St. Luke's–Roosevelt Hosp., 147 A.D.3d 404, 407, 46 N.Y.S.3d 93 [1st Dept. 2017]).  Given those omissions, plaintiffs did not rebut defendants’ prima facie showing of entitlement to summary dismissal of the negligence and medical malpractice claims against them.