Dennis Muhr, Plaintiff, v. Ronald Lev, Defendant (2026)

The following papers, numbered 1 to - 24, were read on this application to/for Summary judgment

Notice of Motion/ Petition/ OSC - Affidavits — Exhibits No(s) 1-13

Answering Affidavits — Exhibits No(s) 14-22

Replying Affidavits No(s) 23-24

In this action to recover damages for medical malpractice based on alleged departures from good and accepted practice and lack of informed consent, the defendant moves for summary judgment dismissing the complaint. The plaintiff opposes the motion. The motion is granted, and the complaint is dismissed.

The crux of the plaintiff's claim is that the defendant vascular surgeon, Ronald Lev, who specializes in the management of varicose veins and other venous conditions, departed from good and accepted medical practice in the manner in which he performed three procedures on his left leg. The plaintiff further contends that Lev failed to obtain his fully informed consent to the procedures, inasmuch as he claims that Lev disregarded the plaintiff's instructions "not to do anything to left leg because plaintiff considered it to be cured by previous doctor." In his bill of particulars, the plaintiff made that specific claim, and also asserted that Lev departed from good practice by performing an "incorrect procedure," although the plaintiff did not explain why that procedure was incorrect or contraindicated, or why it was improperly performed.

It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Flanders v Goodfellow, 44 NY3d 57, 62-63 [2025]; Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]). In other words, "[i]n determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on issues of credibility" (Garcia v J.C. Duggan, Inc., 180 AD2d 579, 580 [1st Dept 1992]; see Haymon v Pettit, 9 NY3d 324, 327 n [2007]). Once the movant meets that burden, it is incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d at 503). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.; Medina v Fischer Mills Condo Assn., 181 AD3d 448, 449 [1st Dept 2020]).

"The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable' " (De Paris v Women's Natl. Republican Club, Inc., 148 AD3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 AD2d 480, 480 [1st Dept 1990]). Thus, a moving defendant does not meet the burden of affirmatively establishing entitlement to judgment as a matter of law merely by pointing to gaps in the plaintiff's case, but must affirmatively demonstrate the merit of his or her defense (see Koulermos v A.O. Smith Water Prods., 137 AD3d 575, 576 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 AD3d 458, 462 [1st Dept 2016]).

"To sustain a cause of action for medical malpractice, a plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 AD3d 15, 24 [1st Dept 2009]; see SanMiguel v Grimaldi, 229 AD3d 152, 157-158 [1st Dept 2024], revd other grounds _____NY3d_____, 2025 NY Slip Op 05780 [Oct. 21, 2025]; Foster-Sturrup v Long, 95 AD3d 726, 727 [1st Dept 2012]; Roques v Noble, 73 AD3d 204, 206 [1st Dept 2010]; Elias v Bash, 54 AD3d 354, 357 [2d Dept 2008]; DeFilippo v New York Downtown Hosp., 10 AD3d 521, 522 [1st Dept 2004]). The law does not require a healthcare provider to guarantee a good result (see Saliaris v D'Amelia, 143 AD2d 996, 996 [2d Dept 1988]), and, although an outcome or result may truly be unfortunate, " 'a bad result does not, ipso facto, support a claim for medical malpractice' " (id. at 996-997; quoting Schoch v Dougherty, 122 AD2d 467, 468 [3d Dept 1988]; see Nestorowich v Ricotta, 281 AD2d 870, 871 [4th Dept 2001], affd 97 NY2d 393 [2002]; Bobek v Crystal, 291 AD2d 521, 523 [2d Dept 2002]; Nabozny v Cappelletti, 267 AD2d 623, 628 [3d Dept 1999]; Zito v Friedman, 77 AD2d 514, 515 [1st Dept 1980] [jury must be instructed that a bad result by itself is not proof of malpractice]).

To make a prima facie showing of entitlement to judgment as a matter of law dismissing a medical malpractice cause of action, a defendant physician moving for summary judgment must establish the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Barry v Lee, 180 AD3d 103, 107 [1st Dept 2019]; Frye v Montefiore Med. Ctr., 70 AD3d at 24) or establish that the plaintiff was not injured by such treatment (see Pullman v Silverman, 28 NY3d 1060, 1063 [2016]; see generally Kristie M. v. Mercy Hosp. of Buffalo, 240 AD3d 1228 [4th Dept 2025]; Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]). To satisfy this burden, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v Noble, 73 AD3d at 206; Joyner-Pack v Sykes, 54 AD3d 727, 729 [2d Dept 2008]; Jones v Ricciardelli, 40 AD3d 935, 935 [2d Dept 2007]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and, in any event, the opinion of a defendant's expert should specify "in what way" the patient's treatment was proper and "elucidate the standard of care" (Ocasio-Gary v Lawrence Hospital, 69 AD3d 403, 404 [1st Dept 2010]). Stated another way, the defendant's expert's opinion must "explain 'what defendant did and why' " (id., quoting Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]). Moreover, as noted, to satisfy the burden on a summary judgment motion, a defendant must address and rebut specific allegations of malpractice set forth in the plaintiff's bill of particulars (see Wall v Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045 [2d Dept 2010]; Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2d Dept 2008]; Terranova v Finklea, 45 AD3d 572, 572 [2d Dept 2007]).

Once satisfied by the defendant, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert's affidavit or affirmation attesting to a departure from accepted medical practice and/or opining that the defendant's acts or omissions were a competent producing cause of the plaintiff's injuries (see Roques v Noble, 73 AD3d at 207; Luu v Paskowski, 57 AD3d 856, 857 [2d Dept 2008]; see also Kristal R. v Nichter, 115 AD3d 409, 411-412 [1st Dept 2014]; Bacani v Rosenberg, 74 AD3d 500, 501-502 [1st Dept 2010]). Thus, to defeat a defendant's prima facie showing of entitlement to judgment as a matter of law, a plaintiff must produce expert testimony regarding specific acts of malpractice, and not just testimony that contains "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice" (Alvarez v Prospect Hosp., 68 NY2d at 325; see also Pancila v Romanzi, 140 AD3d 516, 516 [1st Dept 2016]; Callistro ex rel. Rivera v Bebbington, 94 AD3d 408, 410 [1st Dept 2012], affd sub nom. Callistro v Bebbington, 20 NY3d 945 [2012]; Frye v Montefiore Med. Ctr., 70 AD3d at 24). In most instances, the opinion of a qualified expert that the plaintiff's injuries resulted from a deviation from relevant industry or medical standards is sufficient to preclude an award of summary judgment in a defendant's favor (see Murphy v Conner, 84 NY2d 969, 972 [1994]; Frye v Montefiore Med. Ctr., 70 AD3d at 24).

" 'Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause' " (McAlwee v Westchester Health Assoc., PLLC, 163 AD3d 549, 551 [2d Dept 2018], quoting Burns v Goyal, 145 AD3d 952, 954 [2d Dept 2016]). Thus, where a moving defendant in a medical malpractice action makes a prima facie showing that he or she did not depart from good and accepted practice, or that the treatment rendered to the plaintiff did not cause or contribute to the plaintiff's injuries, the plaintiff, to defeat summary judgment, must submit an expert affirmation or affidavit in opposition; a plaintiff's failure to submit such an expert affirmation or affidavit under such circumstances requires the court to award summary judgment to the moving defendant (see Benedetto v Tannenbaum, 186 AD3d 1596, 1598 [2d Dept 2020]; Bethune v Monhian, 168 AD3d 902, 903 [2d Dept 2019]; Koster v Davenport, 142 AD3d 966, 969 [2d Dept 2016]; Whitnum v Plastic & Reconstructive Surgery, P.C., 142 AD3d 495, 497 [2d Dept 2016]; Roques v Noble, 73 AD3d at 207; Bailey v Owens, 17 AD3d 222, 223 [1st Dept 2005]; cf. Williams v Sahay, 12 AD3d 366, 368 [2d Dept 2004] [unsworn affidavit of unnamed expert that was not affirmed under the penalties for perjury is insufficient to raise triable issue of fact as to defendants' alleged malpractice]).

The elements of a cause of action to recover for lack of informed consent are

"(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury"

(Spano v Bertocci, 299 AD2d 335, 337-338 [2d Dept 2002]; see Zapata v Buitriago, 107 AD3d 977, 979 [2d Dept 2013]). For a statutory claim of lack of informed consent to be actionable, a defendant must have engaged in a "non-emergency treatment, procedure or surgery" or "a diagnostic procedure which involved invasion or disruption of the integrity of the body" (Public Health Law § 2805-d[2]). " '[T]his showing of qualitative insufficiency of the consent [is] required to be supported by expert medical testimony' " (King v Jordan, 265 AD2d 619, 620 [3d Dept 1999], quoting Hylick v Halweil, 112 AD2d 400, 401 [2d Dept 1985]; see CPLR 4401-a; Gardner v Wider, 32 AD3d 728, 730 [1st Dept 2006]). Hence, where a defendant establishes his or her prima facie entitlement to judgment as a matter of law in connection with a lack of informed consent cause of action by submitting an expert affirmation from a physician, a plaintiff can only raise a triable issue of fact by submitting "an expert affirmation stating with certainty that the information defendant[ ] allegedly provided to plaintiff before the [medical] procedures at issue departed from what a reasonable practitioner would have disclosed" (Leighton v Lowenberg, 103 AD3d 530, 530 [1st Dept 2013]). Expert testimony, however, is not necessary with respect to the issue of whether a reasonably prudent person, fully informed, would not have consented to the treatment (see Gray v Williams, 108 AD3d 1085, 1086-1087 [4th Dept 2013]; Hugh v Ofodile, 87 AD3d 508, 509 [1st Dept 2011]; Andersen v Delaney, 269 AD2d 193, 193 [1st Dept 2000]; Hardt v LaTrenta, 251 AD2d 174, 174 [1st Dept 1998]; Osorio v Brauner, 242 AD2d 511, 511-512 [1st Dept 1997]).

" 'The mere fact that the plaintiff signed a consent form does not establish the defendants' prima facie entitlement to judgment as a matter of law' " (Huichun Feng v. Accord Physicians, 194 AD3d 795, 797 [2d Dept 2021], quoting Schussheim v Barazani, 136 AD3d 787, 789 [2d Dept 2016]). Nonetheless, a defendant may satisfy the burden of demonstrating a prima facie entitlement to judgment as a matter of law in connection with such a cause of action where a patient signs a detailed consent form, and there is also evidence that the necessity of the procedure, along with known risks and dangers, were discussed prior to the surgery (see Bamberg-Taylor v Strauch, 192 AD3d 401, 401-402 [1st Dept 2021]).

No expert is needed, however, where plaintiff alleges that there was a complete "failure to issue any warning whatsoever" (Brill v Lenox Hill Hosp., 2023 NY Slip Op 30188[U], *24, 2023 NY Misc LEXIS 269, *42-43 [Sup Ct, NY County, Jan. 11, 2023] [Kelley, J.]; Oley-Trojanowska v Kelley, 2022 NY Slip Op 34049[U], *26-27, 2022 NY Misc LEXIS 7404, *46-47 [Sup Ct, NY County, Nov. 23, 2022 [Kelley, J.]; see Farkas v Saary, 191 AD2d 178, 181 [1st Dept 1993]). Nonetheless, in the absence of any evidence sufficient to raise a triable issue of fact regarding that element of a lack of informed consent cause of action which requires proof that a reasonably prudent patient, fully informed, would not have undergone the subject procure, a court must award summary judgment to a defendant dismissing that cause of action (see Orphan v Pilnik, 66 AD3d 543, 544 [1st Dept 2009], affd 15 NY3d 907 [2010]; see also Karenevich-Dono v Haas, 231 AD3d 576, 578 [1st Dept 2024] ["there is no evidence that plaintiff would have forgone the surgery had she been informed of additional risks of the minimal incisions used. The record shows instead that plaintiff's condition was so serious that a reasonable person informed of the risks would have undergone the surgeries"]; DeCintio v Lawrence Hosp., 33 AD3d 329, 329 [1st Dept 2006]).

In Hylick v Halweil (112 AD2d 400 [2d Dept 1985]), the Supreme Court granted the defendant's motion pursuant to CPLR 4401 to dismiss a lack of informed consent cause of action after the close of the plaintiff's case on the ground that the plaintiff had not adduced legally sufficient evidence that a reasonable person in her position would have declined to undergo a surgical procedure had she been fully informed of the risks and benefits thereof, and the alternatives thereto. In affirming the judgment entered upon the order granting the defendant's motion, the Appellate Division wrote:

"[a]ssuming, arguendo, that the testimony of plaintiff and her expert was sufficient to constitute a prima facie showing of qualitative insufficiency of consent, plaintiff was still required to establish, inter alia, that 'a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed' (Public Health Law § 2805-d [3]; Proce v Franklin Gen. Hosp., 83 AD2d 903). Such a determination would necessarily require the fact finder to balance the risks associated with having the procedure performed against the risks associated with forgoing it. This record is devoid of any evidence upon which a fact finder could give a nonspeculative answer to that question, and the cause of action was therefore properly dismissed (530 E. 89 Corp. v Unger, 43 NY2d 776, 778).; see also Goodreau v State of New York, 129 AD2d 978)"

(id., 112 AD2d at 401-402 [2d Dept 1985]; see DeRosa v Kaali, 240 AD2d 534, 535 [2d Dept 1997] [Supreme Court should have dismissed the lack of informed consent cause of action at the end of the trial because "the plaintiff failed to present evidence establishing that an informed, reasonably prudent person would not have consented to the procedure"]; Innucci v Bauersachs, 201 AD2d 460, 460-461 [2d Dept 1994] [Trial court properly found that the plaintiffs failed to present evidence at trial establishing that an informed, reasonably prudent person would not have consented to the procedure]).

The defendant established his prima facie entitlement to judgment as a matter of law with his submissions, which included the expert affirmation of board-certified general and vascular surgeon, Todd Berland, M.D., who explained that Lev obtained the plaintiff's fully informed written consents to perform endovenous laser treatments of the plaintiff's left-sided small saphenous vein and the left medial distal calf perforator vein, as well as a written consent form for a bilateral venography and a left femoral iliac canal stent placement. Dr. Berland opined that the consents obtained by Lev were qualitatively sufficient since the plaintiff's prior medical history and treatment, the discussions that Lev had with the plaintiff, and the written and signed consent forms, established that the plaintiff was fully informed of the risks and dangers of, and alternatives to, these procedures. He further opined that Lev did not depart from the applicable standard of care by recommending that the plaintiff undergo these procedures, nor did Lev depart from good and accepted care in the manner in which he performed them, and that the plaintiff's thrombotic left leg was not, in fact, "fully cured" by treatments rendered by a previous treating physician, inasmuch as the veins in the plaintiff's left leg had begun to close up subsequent to that treatment. Dr. Berland further opined that nothing that Lev did or did not do caused or contributed to the plaintiff's allegedly bad outcome.

In opposition to the motion, the plaintiff submitted only his own affirmation and series of photographs of his left leg, depicting what he characterized as a bad outcome. In his affirmation, he asserted only that Lev "insisted" on performing procedures to his left leg. He did not attest that he did not actually discuss risks, benefits, and alternatives with Lev, nor did he assert that he never executed three separate consent forms. Moreover, the plaintiff simply recounted the history of his encounters with Lev, and described the injuries he claims to have sustained as a consequence of Lev's wrongdoing. He did not submit any affirmation from a physician, let alone a physician's affirmation that contested the qualitative sufficiency of the consent that Lev obtained in connection with the procedures, or one in which a physician opined that Lev departed from the standard of care applicable to vascular surgeons, thus causing or contributing to the plaintiff's injuries.

Because the plaintiff failed to submit an expert affirmation in opposition to the motion, he has failed to raise a triable issue of fact in opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law in connection with both the medical malpractice and lack of informed consent causes of action. Hence, summary judgment must be awarded to Lev dismissing the complaint.

Accordingly, it is,

ORDERED that the defendant's motion for summary judgment dismissing the complaint is granted, and the complaint is dismissed; and it is further,

ORDERED that the Clerk of the court shall enter judgment in favor of the defendant, Ronald Lev, and against the plaintiff, Dennis Muhr, dismissing the complaint.

This constitutes the Decision and Order of the court.

DATE 6/11/2026

JOHN J. KELLEY, J.S.C.

John J. Kelley, J.