| Shehebar v Boro Park Obstetrics & Gynecology, P.C. |
| 2013 NY Slip Op 03076 [106 AD3d 715] |
| May 1, 2013 |
| Appellate Division, Second Department |
| Ilana Shehebar, Respondent, v Boro ParkObstetrics and Gynecology, P.C., et al., Defendants, and Matthew Neil Silverman,Appellant. |
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Michael N. David, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendantMatthew Neil Silverman appeals from so much of an order of the Supreme Court, KingsCounty (Bunyan, J.), dated February 1, 2012, as denied that branch of the defendants'motion which was for summary judgment dismissing the complaint insofar as assertedagainst him.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff asserts, inter alia, that the defendant Matthew Neil Silvermanimproperly removed her right ovary while performing a laparoscopic cystectomy on herleft ovary. The plaintiff commenced this action against Silverman and others alleging,among other things, medical malpractice. In the order appealed from, the Supreme Court,inter alia, denied that branch of the defendants' motion which was for summary judgmentdismissing the complaint insofar as asserted against Silverman, and Silverman appeals.
A defendant physician moving for summary judgment dismissing a complaintalleging medical malpractice must establish, prima facie, either that there was nodeparture from good and accepted medical practice or that the plaintiff was not injuredthereby (see Xiao Yan Chen vMaimonides Med. Ctr., 104 AD3d 680 [2013]; Gillespie v New York Hosp.Queens, 96 AD3d 901, 902 [2012]; Swanson v Raju, 95 AD3d 1105, 1106 [2012]; Faicco v Golub, 91 AD3d817, 818 [2012]; Stukas vStreiter, 83 AD3d 18, 24 [2011]). Once the defendant physician has made sucha showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issueof fact (see Gillespie v New York Hosp. Queens, 96 AD3d at 902; Stukas vStreiter, 83 AD3d at 24). In order to defeat a defendant's motion for summaryjudgment, a plaintiff must only rebut the defendant's prima facie showing (see Stukasv Streiter, 83 AD3d at 30; see also Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).
Summary judgment is not appropriate in a medical malpractice action where theparties present conflicting medical expert opinions (see Xiao Yan Chen v Maimonides Med. Ctr., 104 AD3d680 [2013]; Contreras vAdeyemi, 102 AD3d 720, 721 [2013]; DiGeronimo v Fuchs, 101 AD3d 933, 936 [2012]; Hayden v Gordon, 91 AD3d819, 821 [2012]). Such conflicting expert opinions raise issues of credibility to beresolved by a jury (see Contreras v Adeyemi, 102 AD3d at 721; DiGeronimov Fuchs, 101 AD3d at 936; Hayden v Gordon, 91 AD3d at 821).
Here, Silverman demonstrated his prima facie entitlement to judgment as a matter of[*2]law dismissing the cause of action alleging medicalmalpractice insofar as asserted against him by establishing that he did not depart fromgood and accepted medical practice while operating on the plaintiff and, in any event,that the plaintiff was not injured by any such departure. In addition to Silverman'sdeposition testimony that he did not see a right ovary during the plaintiff's surgery andhis denial that he removed it, Silverman submitted an affirmation of a board-certifiedobstetrician/gynecologist, who opined that there was no proof that the plaintiff's rightovary was removed during the surgery performed by Silverman. In addition, the expertobstetrician/gynecologist opined that the plaintiff did not suffer any ill effects as a resultof the procedure. Silverman also submitted an affirmation of a board-certifiedradiologist, who opined that the sonograms of the plaintiff's pelvis taken before thesurgery did not demonstrate that the plaintiff had a right ovary and that an MRI takenafter the subject surgery did not show evidence that the right ovary had been removedsurgically.
In opposition, the plaintiff raised triable issues of fact through the affirmation of hermedical expert who opined, inter alia, that based upon sonogram reports prior to thesubject surgery which demonstrated the presence of the plaintiff's right ovary, Silvermanremoved it during the subject surgery. The plaintiff's expert also relied on the operativereport, which found the right ovary to be "normal," various post-surgical sonograms andan MRI which noted that the right ovary was either not visualized or had been removedsurgically, and a post-operative note which stated "right ovary not visualized." Theplaintiff's expert also opined that, as a result of Silverman's negligence, the plaintiffsustained certain injuries.
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied that branch of the defendants'motion which was for summary judgment dismissing the complaint insofar as assertedagainst Silverman. Dillon, J.P., Austin, Sgroi and Cohen, JJ., concur.