State of New York Appellate Division, Second Department

The Second Department has affirmed the granting of summary judgment dismissing an action against a Westchester County surgeon. The plaintiff underwent three surgical procedures performed by the defendant due to complaints of abdominal bloating, pain, and difficulty swallowing related to gastroesophageal reflux disease and a hiatal hernia. The Appellate Division held that in opposition to the defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact. The plaintiff’s expert affirmation was inadmissible as the expert was not licensed in New York State. Furthermore, even if it were admissible, the expert’s affirmation was conclusory and failed to address the specific assertions made by the defense expert. The Appellate Division also affirmed the denial of plaintiff’s motion to reargue and dismissed the appeal from the denial of reargument of the motion. Partner Mary Pat Burke, Esq. made the successful motion, while appellate counsel Ellen A. Fischer, Esq. successfully defended the decision on appeal.