Lucenti v. St. Elizabeth Hospital

289 A.D.2d 983, 734 N.Y.S.2d 917, 2001 N.Y. App. Div. LEXIS 12534

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 21, 2001
• Status: Published

Opinion

Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied that part of the motion of Iqbal Zafar Hamid, M.D. (defendant) seeking summary judgment dismissing the cause of action for negligence against him. Although defendant sustained his initial burden, plaintiffs raised triable issues of fact concerning fault and causation (see generally, Alvarez v Prospect Hosp., 68 NY2d 320, 325-327; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Kremer v Buffalo Gen. Hosp., 269 AD2d 744, 745). The court erred, however, in denying that part of the motion of defendant seeking summary judgment dismissing the cause of action for lack of informed consent against him. Defendant sustained his initial burden by establishing that he elicited the informed consent of plaintiff Frank Lucenti to the surgery, and plaintiffs failed to raise a triable issue of fact by the conclusory affirmation of their expert (see, Lynn G. v Hugo, 96 NY2d 306, 309-310; Gennaro v Dziuban [appeal No. 2], 277 AD2d 939, 939-940; Dunlop v Sivaraman, 272 AD2d 570; Romatowski v Hitzig, 227 AD2d 870, 871, lv dismissed in part and denied in part 89 NY2d 915). We therefore modify the order by granting the motion of defendant in part and dismissing the cause of action for lack of informed consent against him. (Appeal from Order of Supreme Court, Oneida County, Murad, J. — Summary Judgment.) Present — Wisner, J. P., Hurlbutt, Kehoe and Burns, JJ.