PLAINTIFF RESPONDENT v. AND MAHMOUD HAMZA DEFENDANT APPELLANT (2017)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Mahmoud Hamza, M.D. (defendant), appeals from an order that, inter alia, denied his motion for summary judgment dismissing the cause of action asserted against him for medical malpractice arising from his treatment and care of plaintiff's decedent.  We affirm.  Supreme Court properly concluded that plaintiff raised triable issues of fact by submitting the affirmation of a physician who averred that there was a departure from the accepted standard of care and that such departure was a proximate cause of decedent's injuries (see generally Bagley v. Rochester Gen. Hosp., 124 AD3d 1272, 1273;  O'Shea v. Buffalo Med. Group, P.C., 64 AD3d 1140, 1140–1141, appeal dismissed 13 NY3d 834).  Furthermore, the court properly concluded that there is an issue of fact whether defendant's alleged refusal to administer anesthesia before performing surgery on decedent constitutes malicious conduct sufficient to support an award of punitive damages (see Graham v Columbia Presbyt.  Med. Ctr., 185 A.D.2d 753, 754–756;  see generally Dupree v. Giugliano, 20 NY3d 921, 924, rearg. denied 20 NY3d 1045).

Frances E. Cafarell

Clerk of the Court