Zawadzki v. Knight

— Order modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Plaintiff commenced this action against [871] Biozyme Medical Laboratories Associates of MDS Health Group, Inc. and certain physicians, alleging that his decedent died of lupus at age 38 as a result of the failure of Biozyme to perform and interpret laboratory tests properly and the failure of the physicians to diagnose and treat her for lupus. Supreme Court erred in denying Biozyme’s motion for summary judgment dismissing the complaint against it upon renewal and reargument of its motion. Biozyme made a prima facie showing that its test was properly performed, that it did not interpret the results, and it explained why a negative result on February 11 could be correct even though a different laboratory obtained a positive result on a different sample six weeks later. Plaintiff’s attempt to raise a factual issue by an expert’s conclusory affidavit is insufficient (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). We do not review the denial of Biozyme’s motion to dismiss the cross claims against it, as the cross claims are not in the record on appeal, and the parties making the cross claims are not involved in this appeal. All concur, except Callahan, J. P., and Balio, J., who dissent and vote to affirm in the following memorandum.