NAZARIO v. Dr. Emilio Goez, Defendant-Respondent.

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Supreme Court, Appellate Division, First Department, New York.

Elsita NAZARIO, Plaintiff-Appellant, v. ST. BARNABAS HOSPITAL, et al., Defendants, Dr. Emilio Goez, Defendant-Respondent.

Decided: November 21, 2006

TOM, J.P., ANDRIAS, SAXE, GONZALEZ, SWEENY, JJ. Codelia, Aguirre & Socorro, P.C., Bronx (Peter R. Shipman and William A. Tauber of counsel), for appellant. Geisler & Gabriele, LLP, Garden City (Lori A. Marano of counsel), for respondent.

Order, Supreme Court, Bronx County (Barry Salman, J.), entered March 22, 2002, which granted the motion by defendant Goez for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

Dr. Goez satisfied his initial burden of establishing, prima facie, the absence of triable issues of fact on medical malpractice and informed consent;  plaintiff was then required to produce evidentiary proof in admissible form sufficient to require a trial on those issues (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).   Instead, plaintiff offered, in relevant part, an unsworn report by a certain board-certified foot surgeon who had not personally examined the patient but had determined nonetheless, upon review of the materials presented to him, that there had been various deficiencies in the treatment administered, although he could not be certain that those deficiencies amounted to medical malpractice.   Under the circumstances, the motion court properly found plaintiff's opposition devoid of competent admissible evidence to refute sufficiently the expert affidavit and other evidence submitted by Dr. Goez (see Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988] ).   Indeed, there is no substantive proof in the record that the doctor who operated on plaintiff committed medical malpractice or failed to procure her informed consent to this surgery.

We have considered plaintiff's remaining arguments and find them unavailing.