| Masik v Lutheran Med. Ctr. |
| 2012 NY Slip Op 01219 [92 AD3d 733] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Mihail Masik, Appellant, v Lutheran Medical Center,Defendant, and Nawaiz Ahmad, Respondent. |
—[*1] McAloon & Friedman, P.C., New York, N.Y. (Gina B. DiFolco of counsel), forrespondent.
In an action to recover damages for medical malpractice, the plaintiff appeals, as limited byhis brief, from so much of an order of the Supreme Court, Kings County (Rosenberg, J.), datedJanuary 3, 2011, as granted that branch of the motion of the defendant Nawaiz Ahmad which wasfor summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff underwent surgery, performed by the defendant Nawaiz Ahmad (hereinafter thedefendant), to repair a deep laceration to his forearm. After the surgery, the plaintiff developed agranuloma in his forearm, requiring a second surgery, which was performed by nonparty Dr.Leonard Edelstein. Dr. Edelstein noted in his operative report that, during that procedure, "apiece of rope" was removed from the plaintiff's arm. The plaintiff subsequently commenced thisaction to recover damages for medical malpractice. The defendant moved, inter alia, for summaryjudgment dismissing the complaint insofar as asserted against him. The Supreme Court grantedthe motion.
The defendant demonstrated his prima facie entitlement to judgment as a matter of lawdismissing the complaint insofar as asserted against him by submitting, inter alia, the affirmationof an expert who concluded that the surgery performed by the defendant was properly and timelyperformed, that the granuloma the plaintiff developed was a known complication and did notresult from malpractice, and that the granuloma developed at some point between May andSeptember 2007, i.e., after April 10, 2007, which was the date that the bill of particulars allegedthat the defendant negligently failed to diagnose the granuloma. Further, as confirmed by apathology report postdating Dr. Edelstein's operative report, the defendant's expert opined thatthe purported "piece of rope" removed from the plaintiff's arm was suture material purposefullyleft in the arm.
In opposition, the plaintiff, who did not provide an expert affirmation or rebut the defendant'sshowing that there was no foreign body inadvertently left in the defendant's arm, failed to raise atriable issue of fact, including as to the applicability of the doctrine of res ipsa loquitor (see[*2]Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; D'Elia v Menorah Home & Hosp. for theAged & Infirm, 51 AD3d 848, 851 [2008]; Johnson v Nouveau El. Indus., Inc., 38 AD3d 611 [2007]).
Accordingly, that branch of the defendant's motion which was for summary judgmentdismissing the complaint insofar as asserted against him was properly granted. Skelos, J.P.,Leventhal, Lott and Miller, JJ., concur.