Haga v. Pyke

Appellate Division of the Supreme Court of New York

Haga v. Pyke

2 A.D.3d 1413, 768 N.Y.S.2d 901, 2003 N.Y. App. Div. LEXIS 14410

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 31, 2003

StatusPublished

This text of 2 A.D.3d 1413 (Haga v. Pyke) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Haga v. Pyke, 2 A.D.3d 1413, 768 N.Y.S.2d 901, 2003 N.Y. App. Div. LEXIS 14410 (N.Y. Ct. App. 2003).

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Opinion

[1414]*1414Appeal from that part of an order of Supreme Court, Jefferson County (McGuire, J.), entered September 24, 2002, that denied plaintiffs cross motion seeking partial summary judgment on liability.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages arising from a pregnancy following an unsuccessful surgical sterilization procedure. Supreme Court properly denied that part of plaintiffs cross motion seeking partial summary judgment on liability based upon the doctrine of res ipsa loquitur. Contrary to plaintiffs contention, a lay jury would not be able to draw an inference of negligence merely from the failure of the procedure, and plaintiff submitted no expert proof that the procedure is ordinarily successful absent negligence on the part of the surgeon (see Quigley v Jabbur, 124 AD2d 398, 399-400 [1986]; cf. Kambat v St. Francis Hosp., 89 NY2d 489, 496-497 [1997]). Further, even if plaintiff had met her initial burden on the motion, defendants submitted proof in admissible form that the procedure involves a risk of failure that, “even with adherence to the appropriate standard of care, cannot be eliminated,” thereby raising a triable issue of fact (Gushlaw v Roll, 290 AD2d 667, 668 [2002]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Kehoe, JJ.

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[1414]*1414Appeal from that part of an order of Supreme Court, Jefferson County (McGuire, J.), entered September 24, 2002, that denied plaintiffs cross motion seeking partial summary judgment on liability.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages arising from a pregnancy following an unsuccessful surgical sterilization procedure. Supreme Court properly denied that part of plaintiffs cross motion seeking partial summary judgment on liability based upon the doctrine of res ipsa loquitur. Contrary to plaintiffs contention, a lay jury would not be able to draw an inference of negligence merely from the failure of the procedure, and plaintiff submitted no expert proof that the procedure is ordinarily successful absent negligence on the part of the surgeon (see Quigley v Jabbur, 124 AD2d 398, 399-400 [1986]; cf. Kambat v St. Francis Hosp., 89 NY2d 489, 496-497 [1997]). Further, even if plaintiff had met her initial burden on the motion, defendants submitted proof in admissible form that the procedure involves a risk of failure that, “even with adherence to the appropriate standard of care, cannot be eliminated,” thereby raising a triable issue of fact (Gushlaw v Roll, 290 AD2d 667, 668 [2002]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Kehoe, JJ.

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2 A.D.3d 1413, 768 N.Y.S.2d 901, 2003 N.Y. App. Div. LEXIS 14410, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haga-v-pyke-nyappdiv-2003.

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