JOUSMA v. KOLLI (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion of defendant Dr. Venkateswara R. Kolli in part and dismissing the second cause of action against him, and granting that part of the motion of defendant Kaleida Health, doing business as DeGraff Memorial Hospital, with respect to the second cause of action and dismissing that cause of action against it, and as modified the order is affirmed without costs.

Memorandum:  Plaintiffs commenced this action asserting causes of action for medical malpractice and lack of informed consent.  Defendants separately moved for summary judgment dismissing the complaint against them, and they now appeal from an order that, inter alia, denied the motions except as to the negligent hiring, supervision and credentialing claim against defendant Kaleida Health, doing business as DeGraff Memorial Hospital.

We agree with plaintiffs that defendants failed to demonstrate their entitlement to judgment as a matter of law dismissing in its entirety the first cause of action, for medical malpractice (see Kleinman v. North Shore Univ. Hosp., 148 A.D.3d 693, 694, 48 N.Y.S.3d 455 [2d Dept. 2017] ).  Thus, although Supreme Court properly denied the motions to that extent, the court should have done so without regard to the sufficiency of plaintiffs' opposing papers (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ).  We agree with defendants, however, that they separately established their entitlement to judgment as a matter of law dismissing the second cause of action, for lack of informed consent, and that plaintiffs failed to raise a triable issue of fact in opposition (see Harris v. Saint Joseph's Med. Ctr., 128 A.D.3d 1010, 1013, 9 N.Y.S.3d 667 [2d Dept. 2015] ).  The court therefore erred in denying defendants' motions to that extent, and we modify the order accordingly.  Finally, we reject plaintiffs' contention, raised as an alternative ground for affirmance, that the court abused its discretion in considering defendants' motions notwithstanding their untimeliness (see Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 128–129, 711 N.Y.S.2d 131, 733 N.E.2d 203 [2000] ).

Defendants' remaining contentions are academic.