| Etminan v Sasson |
| 2008 NY Slip Op 04311 [51 AD3d 623] |
| May 6, 2008 |
| Appellate Division, Second Department |
| Khadijeh Etminan, Respondent, v Johann Sasson et al.,Appellants. |
—[*1] Levine & Grossman, Mineola, N.Y. (Frank Torres of counsel), for respondent.
In an action to recover damages for medical malpractice and lack of informed consent, thedefendants appeal from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), datedJanuary 8, 2007, which denied their motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof denying thatbranch of the defendants' motion which was for summary judgment dismissing the cause ofaction to recover damages for lack of informed consent and substituting therefor a provisiongranting that branch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
The Supreme Court correctly denied that branch of the defendants' motion which was forsummary judgment dismissing the cause of action to recover damages for medical malpractice.The defendants demonstrated their prima facie entitlement to summary judgment dismissing thatcause of action by submitting an expert affidavit which established that they did not deviate ordepart from accepted medical practices when performing elective, cosmetic surgery on theplaintiff. In opposition to the defendants' motion, the plaintiff raised a triable issue of fact bysubmitting a physician's affidavit which identified the act that allegedly deviated from acceptedmedical practices, explained why it was a deviation, and linked the deviation to the injuries shealleged (see Wiands v Albany Med. Ctr., 29 AD3d 982, 984 [2006]; Feinberg v Feit, 23 AD3d 517, 519[2005]).
The Supreme Court erred in denying that branch of the defendants' motion which was for[*2]summary judgment dismissing the cause of action alleginglack of informed consent. The defendants made a prima facie showing of entitlement to judgmentas a matter of law. In addition to a consent form signed by the plaintiff, the defendants submitteddeposition testimony of the defendant Dr. Johann Sasson regarding his discussions with theplaintiff about the surgical procedures, the alternatives to those procedures, and the reasonablyforeseeable risks and benefits associated with those procedures (see Ortaglia v Scanlon, 35 AD3d421 [2006]; Ericson vPalleschi, 23 AD3d 608, 610 [2005]). The plaintiff's submissions in opposition failed toaddress this issue at all, thus warranting summary judgment dismissing that cause of action (see Rebozo v Wilen, 41 AD3d457, 458 [2007]; Wilson v Buffa, 294 AD2d 357, 358 [2002]). Rivera, J.P.,Santucci, Eng and Chambers, JJ., concur.