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IN A MED MAL ACTION, AN EXPERT’S AFFIRMATION WHICH IS NOT SUPPORTED BY THE RECORD WILL BE DEEMED “CONCLUSORY” AND WILL NOT SUPPORT SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motion for summary judgment in this medical malpractice case should not have been granted because the expert affirmation submitted is support of the motion was “conclusory and not supported by the record:”

… [D]efendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The defendants submitted, inter alia, the affirmation of an expert, whose opinions regarding the defendants’ alleged failure to diagnose the plaintiff’s aortic dissection after receipt of certain X-ray results and blood test results were conclusory and unsupported by the record … . That expert’s opinion regarding proximate cause was also conclusory and insufficient to meet the defendants’ burden as the parties moving for summary judgment … . In v Maimonides Med. Ctr., 2025 NY Slip Op 04238, Second Dept 7-23-25

Practice Point: In a med mal case. an expert affirmation which is not supported by the record will be deemed “conclusory” and insufficient to support summary judgment.

 

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PLAINTIFF’S FAILURE TO COMPLY WITH A STATUS CONFERENCE ORDER REQUIRING... IN A SLIP AND FALL, PROOF OF GENERAL CLEANING PRACTICES DOES NOT DEMONSTRATE...