Opinion
12203 Index No. 805394/13 Case No. 2020-02342
10-27-2020
Joann POIVAN-TRAUB, Plaintiff-Appellant, v. Ted CHAGLASSIAN, M.D., et al., Defendants-Respondents, The New York Eye and Ear Infirmary, Defendant.
H. Bruce Fischer, P.C., Tappan (H. Bruce Fischer of counsel), for appellant. Dwyer & Taglia, New York (Peter R. Taglia of counsel), for respondents.
H. Bruce Fischer, P.C., Tappan (H. Bruce Fischer of counsel), for appellant.
Dwyer & Taglia, New York (Peter R. Taglia of counsel), for respondents.
Gische, J.P., Oing, Scarpulla, Mendez, JJ.
Judgment, Supreme Court, New York County (Eileen A. Rakower, J.), entered October 23, 2019, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
The motion court correctly found that defendants made out their prima facie burden as movants, through the affirmation of their expert plastic surgeon (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; Coronel v. New York City Health & Hosps. Corp. , 47 A.D.3d 456, 848 N.Y.S.2d 876 [1st Dept. 2008] ). That proof of the expert's qualifications was not submitted in the moving papers was a technical defect that the motion court was within its discretion to permit defendants to correct on reply (see Stewart v. Goldstein , 175 A.D.3d 1214, 109 N.Y.S.3d 286 [1st Dept. 2019] ; Cabrera v. New York Univ. Coll. of Dentistry , 25 Misc.3d 51, 890 N.Y.S.2d 242 [App. Term, 1st Dept. 2009] ). The affidavit of plaintiff's expert, which was vague, conclusory, and in part contradicted by plaintiff's medical records, failed to create questions of fact such to rebut defendants' entitlement to summary judgment (see Alvarez, supra ; Dasent v. Schechter , 95 A.D.3d 693, 944 N.Y.S.2d 556 [1st Dept. 2012] ; Ramirez v. Columbia–Presbyterian Med. Ctr. , 16 A.D.3d 238, 239, 790 N.Y.S.2d 606 [1st Dept. 2005]. Plaintiff's allegation concerning failure to assess her mental health was neither pled, nor supported by the evidence (see Biondi v. Behrman , 149 A.D.3d 562, 53 N.Y.S.3d 265 [1st Dept.], lv dismissed in part, denied in part 30 N.Y.3d 1012, 66 N.Y.S.3d 223, 88 N.E.3d 382 [2017] ; Abalola v. Flower Hosp. , 44 A.D.3d 522, 843 N.Y.S.2d 615 [1st Dept. 2007] ). Plaintiff's claim of lack of informed consent was also correctly dismissed (see Orphan v. Pilnik , 66 A.D.3d 543, 887 N.Y.S.2d 66 [2009], affd 15 N.Y.3d 907, 914 N.Y.S.2d 729, 940 N.E.2d 555 [2010] ; Gardner v. Wider , 32 A.D.3d 728, 821 N.Y.S.2d 74 [1st Dept. 2006] ).