MEIER v. SIMPSON LLP LLP (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order and judgment so appealed from is unanimously modified on the law by granting the motion of defendants Kwame Amankwah, M.D. and University Surgical Associates, LLP in part and dismissing the second cause of action against those defendants, and as modified the order and judgment is affirmed without costs.

Memorandum: Plaintiff commenced this action against defendants Kwame Amankwah, M.D. and University Surgical Associates, LLP (collectively, Amankwah defendants) and defendants Robert Bruce Simpson, M.D. and Upstate Orthopedics, LLP (collectively, Simpson defendants), seeking damages for injuries sustained by plaintiff following reconstructive knee surgery, resulting in the need for plaintiff to undergo a below-the-knee amputation. In his complaint, plaintiff asserted causes of action for medical malpractice and lack of informed consent. The Amankwah defendants and the Simpson defendants separately moved for summary judgment dismissing the complaint against them. Defendants now appeal from an order and judgment that denied the Amankwah defendants' motion in its entirety and denied the Simpson defendants' motion except with respect to certain claims in the medical malpractice cause of action.

While we agree with defendants that they separately met their initial burden with respect to the remaining claims in the medical malpractice cause of action by each submitting the affidavit of their expert physician, who averred that defendants did not deviate from the accepted standard of medical care in the treatment and monitoring of plaintiff (see Carthon v. Buffalo Gen. Hosp. at Deaconess Skilled Nursing Facility Div., 83 A.D.3d 1404, 1405, 921 N.Y.S.2d 746 [4th Dept. 2011]), we conclude that the affidavit of plaintiff's medical expert raised triable issues of fact with respect thereto (see Gardiner v. Halleran, 172 A.D.3d 1922, 1922, 97 N.Y.S.3d 922 [4th Dept. 2019]; see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]). Where, as here, the “nonmovant's expert affidavit ‘squarely opposes’ the affirmation of the moving parties' expert, the result is ‘a classic battle of the experts that is properly left to a jury for resolution’ ” (Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018]).

We agree with the Amankwah defendants, however, that they established their entitlement to judgment as a matter of law dismissing the second cause of action, for lack of informed consent, against them and that plaintiff failed to raise a triable issue of fact in opposition (see Jousma v. Kolli, 169 A.D.3d 1356, 1357, 92 N.Y.S.3d 764 [4th Dept. 2019]; Harris v. Saint Joseph's Med. Ctr., 128 A.D.3d 1010, 1013, 9 N.Y.S.3d 667 [2d Dept. 2015]). We therefore modify the order and judgment accordingly.