Opinion
9498 Index 805199/12
05-30-2019
Kirsys GALLARDO, Plaintiff–Respondent, v. Akuezunkpa Oliaku UDE, M.D., et al., Defendants–Appellants.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants. Rosenblatt & Frasciello, LLC, New York (Giulio S. Frasciello of counsel), for respondent.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants.
Rosenblatt & Frasciello, LLC, New York (Giulio S. Frasciello of counsel), for respondent.
Sweeny, J.P., Richter, Manzanet–Daniels, Tom, Oing, JJ.
Order, Supreme Court, New York County (Judith M. McMahon, J.), entered on or about July 19, 2018, which denied defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.
Defendants made a prima facie showing of entitlement to judgment as a matter of law. They submitted the affirmation of an expert surgeon, who averred that the treatment provided to plaintiff comported with good and accepted practice (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] ). The complications resulting from plaintiff's bariatric surgery were well-known and common risks, and were addressed in the consent executed by plaintiff prior to surgery.In opposition, plaintiff failed to raise an issue of fact. The claims of plaintiff's expert that the surgery, and the subsequent procedure, were incorrectly performed, are unsupported by the evidence, and the allegations of a remaining obstruction are contradicted by diagnostic test results (see Vargas v. St. Barnabas Hosp., 168 A.D.3d 596, 92 N.Y.S.3d 265 [1st Dept. 2019] ; Brown v. Bauman, 42 A.D.3d 390, 392, 841 N.Y.S.2d 229 [1st Dept. 2007] ).