Gallardo v. Ude

2019 NY Slip Op 4291

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 30, 2019
• Docket: 9498 805199/12
• Status: Published

Opinion

Gallardo v Ude (2019 NY Slip Op 04291)

Gallardo v Ude

2019 NY Slip Op 04291

Decided on May 30, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 30, 2019
Sweeny, J.P., Richter, Manzanet-Daniels, Tom, Oing, JJ.

9498 805199/12

[*1]Kirsys Gallardo, Plaintiff-Respondent,

v

Akuezunkpa Oliaku Ude, M.D., et al., Defendants-Appellants.

Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants.

Rosenblatt & Frasciello, LLC, New York (Giulio S. Frasciello of counsel), for respondent.

Order, Supreme Court, New York County (Judith M. McMahon, J.), entered on or about July 19, 2018, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

Defendants made a prima facie showing of entitlement to judgment as a matter of law. They submitted the affirmation of an expert surgeon, who averred that the treatment provided to plaintiff comported with good and accepted practice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Coronel v New York City Health & Hosps. Corp., 47 AD3d 456 [1st Dept 2008]). The complications resulting from plaintiff's bariatric surgery were well-known and common risks, and were addressed in the consent executed by plaintiff prior to surgery.

In opposition, plaintiff failed to raise an issue of fact. The claims of plaintiff's expert that the surgery, and the subsequent procedure, were incorrectly performed, are unsupported by the evidence, and the allegations of a remaining obstruction are contradicted by diagnostic test results (see Vargas v St. Barnabas Hosp., 168 AD3d 596 [1st Dept 2019]; Brown v Bauman, 42 AD3d 390, 392 [1st Dept 2007]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 30, 2019

CLERK