MASOTTO v. LEDDY (2005)

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Emerson, J.), dated July 14, 2003, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs allege that the defendants failed to timely diagnose the plaintiff Peter Masotto (hereinafter Masotto) with esophageal cancer.   The defendants made a prima facie showing that they did not deviate from good and accepted medical practice in treating Masotto (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642).   The defendants' submissions demonstrated that Masotto's complaints and physical manifestations were not symptoms of esophageal cancer, and that he was properly treated.   In opposition thereto, the plaintiffs submitted an expert affirmation which, inter alia, stated that since Masotto complained of vomiting, the defendants' course of treatment was deficient.   However, as noted by the Supreme Court, the plaintiffs did not apprise the defendants of any vomiting complaints during the time period at issue.   Accordingly, as the affidavit of the plaintiffs' expert assumed facts which were not supported by the evidence, and since it did not otherwise demonstrate a triable issue of fact regarding the defendants' alleged deviation from good and accepted medical practice, the Supreme Court properly granted the defendants' motion for summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Krash v. Bishop-Sanzari, J.V., 309 A.D.2d 788, 789, 765 N.Y.S.2d 387;  Kaplan v. Hamilton Med. Assocs., 262 A.D.2d 609, 610, 692 N.Y.S.2d 674).