FREY v. ITZKOWITZ (2026)

Order, Supreme Court, New York County (Kathy J. King, J.), entered April 2, 2025, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Supreme Court correctly found that defendants made out a prima facie showing of entitlement to summary judgment through the expert affidavits of a gastroenterologist, infectious disease specialist, and critical care specialist, all of whom opined that the course of treatment of plaintiff's decedent's medical condition comported with good and appropriate standards of care and did not cause or contribute to the diagnosis of pneumonia or death (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Matter of Colletti v. Schiff, 98 A.D.3d 887, 888, 951 N.Y.S.2d 139 [1st Dept. 2012]).  While the affirmations did not employ the verbiage of CPLR 2106, this issue is unpreserved because plaintiff did not raise this issue until oral argument, depriving defendants of the opportunity to cure the defect (see Poivan–Traub v. Chaglassian, 187 A.D.3d 653, 653, 131 N.Y.S.3d 146 [1st Dept. 2020];  Stewart v. Goldstein, 175 A.D. 3d 1214, 1215, 109 N.Y.S.3d 286 [1st Dept. 2019]).

The court was also correct in finding that plaintiff's expert raised questions of fact that are for a jury to decide (see generally Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002];  Cregan v. Sachs, 65 A.D.3d 101, 108–109, 879 N.Y.S.2d 440 [1st Dept. 2009]).  Specifically, plaintiff's expert gastroenterologist opined that the course of treatment was not within the standard of care and departed from good and acceptable medical practice because defendants failed to order an immediate colectomy and failed to inform decedent of the risks and alternatives of continuing the medication as opposed to doing the colectomy.  The affirmation detailed, based on medical records, why that care was a deviation and opined that the failure to perform immediate surgery deprived decedent of a chance at recovery.  Defendants' argument that plaintiff's expert is not qualified to opine that surgery should have been performed is unpersuasive.  The expert is a gastroenterologist opining on the treatment of defendant gastroenterologist, not on any particular surgical technique (see Johnson v. Harlem Hosp., 238 A.D.3d 412, 413, 233 N.Y.S.3d 290 [1st Dept. 2025]).

Furthermore, defendants are correct that the court mistakenly stated, during oral argument, that plaintiff had a lack of informed consent cause of action, however, this mistake does not warrant reversal because the allegations being discussed were nevertheless valid in connection with plaintiff's medical malpractice cause of action.