MILLER v. Emanuela Binello, M.D., Defendants. (2021)

Order, Supreme Court, New York County (George J. Silver, J.), entered June 15, 2020, which, to the extent appealed from as limited by the briefs, denied defendants Mount Sinai Hospital and Kalmon D. Post, M.D.’s motion for summary judgment dismissing plaintiff's cause of action for lack of informed consent, unanimously affirmed, without costs.

The motion court properly found that plaintiff's evidence was sufficient to rebut defendants’ prima facie showing as to his claim sounding in lack of informed consent (see Public Health Law § 2805–d).  Plaintiff's testimony and supporting affidavit, along with the testimony of his uncle who was privy to discussions with defendant Dr. Post prior to the recommended surgery, contradicted Dr. Post's assertion that he verbally apprised plaintiff of the “alternatives ․ and ․ reasonably foreseeable risks and benefits involved” in the surgery (Public Health Law § 2805–d [1];  see Santiago v. Filstein, 35 A.D.3d 184, 187, 826 N.Y.S.2d 216 [1st Dept. 2006];  Corcino v. Filstein, 32 A.D.3d 201, 202, 820 N.Y.S.2d 220 [1st Dept. 2006];  Andersen v. Delaney, 269 A.D.2d 193, 193, 703 N.Y.S.2d 714 [1st Dept. 2000]).  Moreover, the parties submitted conflicting medical experts’ opinions regarding the sufficiency of the informed consent (see Carnovali v. Sher, 121 A.D.3d 552, 552, 995 N.Y.S.2d 16 [1st Dept. 2014];  Koffler v. Biller, 262 A.D.2d 150, 692 N.Y.S.2d 48 [1st Dept. 1999]).