Opinion
Index No. 63255/2018 Motion Seq. Nos. 2 3
03-28-2022
DAVID FAIRCHILD and JANET RUEDA, Plaintiffs, v. SETH LERNER, AARON HAGGE-GREENBURG, CHARLES GLASSMAN, WESTCHESTER UROLOGICAL, ASSOCIATES, PC d/b/a ADVANCED UROLOGY CENTERS OF NEW YORK and WHITE PLAINS HOSPITAL MEDICAL CENTER, Defendants.
Unpublished Opinion
DECISION AND ORDER
DAVID F. EVERETT, JUDGE
The following papers were considered on the motions:
Notice of Motion/Statement/Affirmation/Exhibits/Memorandum/
Notice of Motion/Statement/Affirmation/Exhibits/Stipulations/
Affirmation/Statement/Affidavits/Affirmation/Statement/
Affidavits/Affirmations/Order
(NYSCEF documents numbered 46-116)
The plaintiffs commenced this action to recover damages for medical malpractice and lack of informed consent, etc. In motion sequence number 2, the defendants Seth Lerner, Aaron-Hagge-Greenburg, and White Plains Hospital Medical Center (WPHMC) move for summary judgment dismissing the complaint insofar as asserted against them. In motion sequence number 3, the defendants Charles Glassman and Integrated Medical Professionals, PLLC, s/h/a Westchester Urological Associates, PC d/b/a Advanced Urology Centers of New York (IMP) move for summary judgment dismissing the complaint insofar as asserted against them. The plaintiffs oppose the motions. The case was reassigned to the undersigned following the recusal of a different Justice. For reasons explained below, the Court grants the motions.
On a summary judgment motion, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]).
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Williams v Nanda, 177 A.D.3d 938, 939 [2d Dept 2019] [internal quotation marks omitted]). "A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries" (Williams v Nanda, 177 A.D.3d at 939; see Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011]). If a defendant establishes, prima facie, his or her entitlement to judgment as a matter of law, then the plaintiff must submit evidentiary facts or materials to rebut the prima facie showing, so as to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Stukas v Streiter, 83 A.D.3d at 24).
"Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Feinberg v Feit, 23 A.D.3d 517, 519 [2d Dept 2005]). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" (Myers v Ferrara, 56 A.D.3d 78, 84 [2d Dept 2008]). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" (Tsitrin v New York Community Hosp., 154 A.D.3d 994, 996 [2d Dept 2017] [internal quotation marks omitted]).
"To establish a cause of action to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Gilmore v Mihail, 174 A.D.3d 686, 688 [2d Dept 2019] [internal quotation marks omitted]).
Here, on their motion, Lerner, Hagge-Greenburg, and WPHMC demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. Their expert, Huang, opines that they did not depart from accepted medical practice and that, in any event, they did not cause or contribute to the injured plaintiff's injury (see Gilmore v Mihail, 174 A.D.3d at 687). Their submissions also establish, prima facie, that informed consent was obtained or that the alleged lack of informed consent was not a proximate of the injury (see Arra v Kumar, 200 A.D.3d 949, 952 [2d Dept 2021]).
Likewise, on their motion, Glassman and IMP demonstrate their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. Their expert, Latino, opines that they did not depart from accepted medical practices and that, in any event, they did not cause or contribute to the injured plaintiff's injury (see Gilmore v Mihail, 174 A.D.3d at 687). Their submissions also establish, prima facie, their entitlement to judgment as a matter of law on the cause of action alleging lack of informed consent.
The plaintiffs fail to raise a triable issue of fact in opposition. The affirmation of the plaintiff's expert is conclusory, speculative, and fails to address the specific assertions of the defendants' experts (see Scopelliti v Westmed Med. Group, 193 A.D.3d 1009, 1011 [2d Dept 2021]).
The remaining contentions do not require a different result.
Accordingly, it is, ORDERED that the motion of the defendants Seth Lerner, Aaron-Hagge-Greenburg, and WPHMC for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further, ORDERED that the motion of the defendants Charles Glassman and IMP for summary judgment dismissing the complaint insofar as asserted against them is granted; and it is further, ORDERED that the defendants Seth Lerner, Aaron-Hagge-Greenburg, and WPHMC must, within ten days of the date of entry, serve on the other parties a copy of this decision and order with notice of entry; and it is further, ORDERED that the defendants Seth Lerner, Aaron-Hagge-Greenburg, and WPHMC must, within ten days after service of the notice of entry, file proof of that service.
This constitutes the decision and order of the Court.