| Matos v Schwartz |
| 2013 NY Slip Op 01380 [104 AD3d 650] |
| March 6, 2013 |
| Appellate Division, Second Department |
| Keith Matos et al., Respondents, v ArnoldSchwartz et al., Appellants, et al., Defendants. |
—[*1] Kaufman Borgeest & Ryan LLP, Garden City, N.Y. (Jacqueline Mandell of counsel),for appellant William Martin. Sanocki, Newman & Turret, LLP, New York, N.Y. (David B. Turret and JoshuaFogel of counsel), for respondents.
In an action to recover damages for medical malpractice and lack of informedconsent, etc., the defendants Arnold Schwartz and Orthopedic Spine Care of L.I., P.C.,appeal, and the defendant William Martin separately appeals, as limited by theirrespective briefs, from so much of an order of the Supreme Court, Suffolk County(Molia, J.), dated May 31, 2011, as denied their separate motions for summary judgmentdismissing the complaint insofar as asserted against each of them.
Ordered that the order is reversed insofar as appealed from, on the law, with one billof costs to the appellants appearing separately and filing separate briefs, and the separatemotions of the appellants Arnold Schwartz and Orthopedic Spine Care of L.I., P.C., andthe appellant William Martin, for summary judgment dismissing the complaint insofar asasserted against each of them are granted.
On July 7, 2005, the injured plaintiff, Keith Matos, underwent spinal fusion surgeryto alleviate back pain caused by lumbar disc degeneration. The surgery was performed bythe defendant Arnold Schwartz, an orthopedic surgeon, with the assistance of thedefendant William Martin, a vascular surgeon. During the course of the operation, whichrequired the surgeons to gain access to the lumbar spine through the abdomen, theinjured plaintiff's left iliac vein was torn. The injured plaintiff, and his wife suingderivatively, thereafter commenced this medical malpractice action against severalparties, including Schwartz, Orthopedic Spine Care of L.I., P.C. (hereinafter OrthopedicSpine Care), a professional corporation of which Schwartz is a member, and Martin,alleging that they had negligently damaged the injured plaintiff's iliac vein during thesurgery, resulting in serious complications including retrograde ejaculation. Theplaintiffs also alleged that those defendants had failed to obtain the injured plaintiff'sinformed consent to the surgery. After [*2]discovery hadbeen completed, the defendants Schwartz and Orthopedic Spine Care, and the defendantMartin, separately moved for summary judgment dismissing the complaint insofar asasserted against each of them. The Supreme Court denied their respective motions.
Schwartz and Orthopedic Spine Care made a prima facie showing of theirentitlement to judgment as a matter of law dismissing the causes of action sounding inmedical malpractice insofar as asserted against them. Schwartz and Orthopedic SpineCare established, through the submission of deposition testimony, medical records, andthe affirmation of an expert neurosurgeon, that Schwartz did not depart from good andaccepted medical practice in his treatment of the injured plaintiff (see Lahara v Auteri, 97 AD3d799 [2012]; Calli v ForestView Ctr. for Rehabilitation & Nursing, Inc., 91 AD3d 898, 899 [2012]; McLoughlin v Suffolk Obstetrics& Gynecology, LLP, 85 AD3d 984, 984 [2011]). The expert neurosurgeonconcluded in his affirmation that Schwartz appropriately recommended spinal fusionsurgery to the injured plaintiff, that an injury to the iliac vein and retrograde ejaculationwere known and accepted complications associated with this type of surgery, whichcould occur in the absence of negligence, and that nothing in the manner in whichSchwartz performed the surgery increased the risk of injury to the iliac vein (see Swanson v Raju, 95 AD3d1105, 1106 [2012]; Bengston v Wang, 41 AD3d 625, 626 [2007]). Inopposition, the plaintiffs failed to raise a triable issue of fact. The affirmation of theplaintiffs' medical expert was conclusory and unsupported by competent evidence, andthus insufficient to defeat summary judgment (see Lahara v Auteri, 97 AD3d at799-800; Calli v Forest View Ctr. for Rehabilitation & Nursing, Inc., 91 AD3d at899; Ahmed v New York CityHealth & Hosps. Corp., 84 AD3d 709, 711 [2011]).
In addition, Schwartz and Orthopedic Spine Care made a prima facie showing ofentitlement to judgment as a matter of law dismissing the cause of action sounding inlack of informed consent insofar as asserted against them by submitting evidence thatSchwartz explained the risks and complications associated with the spinal fusion surgeryto the injured plaintiff, and that the injured plaintiff signed a written consent form whichstated, inter alia, that he had been fully informed of the expected benefits and potentialcomplications of the procedure, and the alternatives thereto (see Vodos v Coopersmith, 85AD3d 909, 910 [2011]; Johnson v Staten Is. Med. Group, 82 AD3d 708, 709[2011]; Etminan v Sasson,51 AD3d 623, 624 [2008]; Ortaglia v Scanlon, 35 AD3d 421 [2006]). In opposition,the plaintiffs failed to raise a triable issue of fact (see Johnson v Staten Is. Med.Group, 82 AD3d at 709). Accordingly, the Supreme Court should have granted themotion of Schwartz and Orthopedic Spinal Care for summary judgment dismissing thecomplaint insofar as asserted against them.
Martin also made a prima facie showing of his entitlement to judgment as a matter oflaw dismissing the complaint insofar as asserted against him through, inter alia, theaffirmation of an expert vascular surgeon who opined that the injury to the iliac veinoccurred during the orthopedic portion of the spinal fusion surgery, and that Martin didnot depart from good and accepted medical practice in performing the vascular portion ofthe surgery (see Lahara v Auteri, 97 AD3d at 799; Calli v Forest View Ctr.for Rehabilitation & Nursing, Inc., 91 AD3d at 899; McLoughlin v SuffolkObstetrics & Gynecology, LLP, 85 AD3d at 984). Moreover, Martin made a primafacie showing that he did not fail to obtain the injured plaintiff's informed consent to thesurgery (see Vodos v Coopersmith, 85 AD3d at 910; Johnson v Staten Is.Med. Group, 82 AD3d at 709; Etminan v Sasson, 51 AD3d at 624;Ortaglia v Scanlon, 35 AD3d at 421). In opposition, the plaintiffs' submissions,including the conclusory affirmation of their expert, were insufficient to raise a triableissue of fact (see Lahara v Auteri, 97 AD3d at 799-800; Calli v Forest ViewCtr. for Rehabilitation & Nursing, Inc., 91 AD3d at 899; Ahmed v New YorkCity Health & Hosps. Corp., 84 AD3d at 711; see also Johnson v Staten Is. Med.Group, 82 AD3d at 709).
Furthermore, we reject the plaintiffs' alternative argument (see Parochial Bus Sys.v Board of Educ. of City of N.Y., 60 NY2d 539, 548 [1983]) that Martin's motionfor summary judgment dismissing the complaint insofar as asserted against him shouldhave been denied as untimely. Although Martin's motion was made five days beyond thedeadline fixed by CPLR 3212 (a), he demonstrated good cause for this de minimis delay(see Valenzano vValenzano, 98 AD3d 661, 662 [2012]; Popalardo v Marino, 83 AD3d 1029, 1030 [2011]; Castro v Homsun Corp., 34AD3d 616, 617 [2006]; Stimson v E.M. Cahill Co., Inc., 8 AD3d 1004, 1005[2004]). In addition, while the expert affirmation initially submitted by Martin wasdefective in form because the expert was not a physician licensed in New [*3]York (see CPLR 2106), he corrected this technicaldefect in reply by submitting the identical evidence in proper form. Under thesecircumstances, the original defect in form does not require denial of Martin's motion(see CPLR 2001; cf.Koufalis v Logreira, 102 AD3d 750 [2013]; Hayden v Gordon, 91 AD3d 819, 820 [2012]; Coccia v Liotti, 70 AD3d747, 752 [2010]). Eng, P.J., Dickerson, Lott and Miller, JJ., concur. [Prior CaseHistory: 2011 NY Slip Op 31436(U).]