Johnson v. Montefiore Med. Ctr.
Opinion
Johnson v Montefiore Med. Ctr.
2026 NY Slip Op 04911
August 6, 2026
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Alma Johnson, Plaintiff-Appellant,
v
Montefiore Medical Center et al., Defendants-Respondents.
Decided and Entered: August 06, 2026
Index No. 30053/17|Appeal No. 5650|Case No. 2025-02825|
Before: Manzanet-Daniels, J.P., Webber, Friedman, González, Michael, JJ.
Gentile & Associates, New York (Laura Gentile of counsel), for appellant.
Yoeli Gottlieb & Etra LLP, New York (Susan Etra of counsel), for respondents.
Order, Supreme Court, New York County (Michael A. Frishman, J.), entered on or about March 28, 2025, which, to the extent appealed from as limited by the briefs, granted defendants' summary judgment motion to dismiss plaintiff's claims concerning the alleged ureteral injury she sustained during surgery and denied plaintiff's motion to dismiss defendants' affirmative defense of culpable conduct, unanimously affirmed, without costs.
In this medical malpractice action, plaintiff alleges that she sustained injuries to her ureter after defendants negligently performed a hysterectomy to remove a cancerous tumor. Defendants Drs. Dennis Kuo and Devin Miller performed the surgery at defendant Montefiore Medical Center. Defendants deny plaintiff's negligence claims and have asserted affirmative defenses of culpable conduct and comparative negligence.
In their motion for summary judgment, defendants argued that they acted within the confines of good and accepted medical practice, that injury to the ureter is a known risk of hysterectomies, and that there was no delay in diagnosing the injury in light of plaintiff's clinical presentation. Defendants further contended that all other allegations were conclusory and speculative. Defendants relied onplaintiff's medical records, deposition transcripts, and expert affirmations.
Plaintiff opposed and argued that defendants were negligent by failing to insert ureteral catheters or create tunnels to protect the ureters during the hysterectomy, by injuring the right ureter, and by failing to perform a cystoscopy postoperatively. Plaintiff also submitted an expert affirmation.
A defendant makes a prima facie case of entitlement to summary judgment in a medical malpractice action by submitting an affirmation from a medical expert establishing that the treatment provided to the plaintiff comported with good and accepted practice (see Coronel v New York City Health & Hosps. Corp., 47 AD3d 456, 457 [1st Dept 2008]). Once established, the burden shifts to the plaintiff to present evidence in admissible form that demonstrates the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
A plaintiff normally sustains his or her burden where the affirmation of his or her medical expert demonstrates "that the defendant's actions were a departure from the accepted standard of care in the medical community, and a proximate cause—i.e., a substantial factor—in bringing about the injury" (Melendez v Parkchester Med. Servs., P.C., 76 AD3d 927, 927 [1st Dept 2010]; see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]). When the parties have submitted nonconclusoryconflicting expert opinions, the matter cannot be decided as a matter of law (see Cruz v St. Barnabas Hosp., 50 AD3d 382, 382 [1st Dept 2008]).
[*2]However, general allegations of medical malpractice, which are merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant's summary judgment motion (see Alvarez, 68 NY2d at 325; Melendez, 76 AD3d at 927; Ramirez v Columbia-Presbyterian Med. Ctr., 16 AD3d 238, 239 [1st Dept 2005]). An expert opinion that is either unsupported or contradicted by the record cannot defeat summary judgment (see Bartolacci-Meir v Sassoon, 149 AD3d 567, 572 [1st Dept 2017]; Browder v New York City Health & Hosps. Corp., 37 AD3d 375, 376 [1st Dept 2007]; Wong v Goldbaum, 23 AD3d 277, 279 [1st Dept 2005]). The expert must address the points made by defendant's expert to rebut a showing of entitlement to summary judgment (see Abalola v Flower Hosp., 44 AD3d 522, 522 [1st Dept 2007]; Pietroforte v Belle Harbor Home of the Sages, Inc., 220 AD3d 628, 628-629 [1st Dept 2023]). On the issue of causation, the expert must explain how the deviation caused the injuries alleged; a bald assertion does not suffice (see Pancila v Romanzi, 140 AD3d 516 [1st Dept 2016]).
The motion court properly granted defendants' motion for summary judgment. Defendants made a prima facie showing of entitlement to summary judgment through the affirmation of their medical expert, Dr. Molly Brewer, a board-certified obstetrician and gynecologist. Dr. Brewer's affirmation established that the treatment provided to plaintiff comported with good and accepted practice.
Dr. Brewer averred that injury to the ureter is a known surgical risk of a hysterectomy even where best practices are followed, as they were here, and that plaintiff's risk of injury was higher due to her physical size, her history of smoking, and the way the tumor distorted her anatomy. She opined that Dr. Kuo took the appropriate precautions to prevent an injury to the ureters by, among other things, creating a tunnel around the dissected area and a window underneath the infundibulopelvic ligament. Dr. Brewer averred that because the ureters were visualized during surgery and deemed intact, there was no need for any tests to check the ureter functioning. A cystoscopy would only have visualized a bladder injury, not a ureteral injury as alleged here. Moreover, there was no evidence of leakage until several days postsurgery.
Dr. Brewer also opined that plaintiff's reported symptoms associated with leakagewereconsistent with a ureteral injury of a vascular nature, as opposed to a laceration or crush injury as alleged by plaintiff's expert. According to Dr. Brewer, a vascular injury wouldtypically take 7-14 days to show symptoms of leakage and thus would not have been evident during surgery. However, leakage from a cut or crushed ureter during the operation would likely have been visible intraoperatively or there would have been classic signs of uremic deterioration immediately after surgery.
[*3]Plaintiff failed to raise a triable issue of fact (see Alvarez, 68 NY2d at 324; Coronel, 47 AD3d at 457). Plaintiff's medical expert opined that Dr. Kuoshould have protected plaintiff's right ureter by inserting ureteral catheters presurgery or alternatively, by creating a ureteral tunnel during surgery. Instead,he crushed the ureter with surgical clamps, and the clamped right ureter ruptured due to the pressure of the urine backing up in the ureter and kidney. However, these conclusions are directly contradicted by the surgical report and by Dr. Kuo's testimony (see Bartolacci-Meir, 149 AD3d at 572; Browder, 37 AD3d at 376; Wong, 23 AD3d at 279-280).
Furthermore, plaintiff's expert did not address Dr. Brewer's opinion that plaintiff's ureter developed damage from devascularization, which would not have been apparent during surgery and was consistent with plaintiff's clinical presentation postsurgery (see Pietroforte, 220 AD3d at 628-629). Plaintiff's expert's failure to address this portion of Dr.
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