Opinion
CA 03-00936.
December 31, 2003.
Appeal from that part of an order of Supreme Court, Jefferson County (McGuire, J.), entered September 24, 2002, that denied plaintiff's cross motion seeking partial summary judgment on liability.
LAW OFFICE OF ROBERT J. MILETSKY, NEW YORK (ROBERT J. MILETSKY OF COUNSEL), FOR PLAINTIFF-APPELLANT.
MARTIN, GANOTIS, BROWN, MOULD CURRIE, P.C., DE WITT (MICHAEL J. CIRINCIONE OF COUNSEL), FOR DEFENDANTS-RESPONDENTS ROBERT PYKE, M.D. AND OBSTETRIC GYNECOLOGIC ASSOCIATES OF NORTHERN NEW YORK, P.C.
AMDURSKY, PELKY, FENNELL WALLEN, P.C., OSWEGO (TIMOTHY J. FENNELL OF COUNSEL), FOR DEFENDANT-RESPONDENT SAMARITAN MEDICAL CENTER.
Before: PRESENT: PIGOTT, JR., P.J., GREEN, PINE, HURLBUTT, AND KEHOE, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action to recover damages arising from a pregnancy following an unsuccessful surgical sterilization procedure. Supreme Court properly denied that part of plaintiff's cross motion seeking partial summary judgment on liability based upon the doctrine of res ipsa loquitur. Contrary to plaintiff's contention, a lay jury would not be able to draw an inference of negligence merely from the failure of the procedure, and plaintiff submitted no expert proof that the procedure is ordinarily successful absent negligence on the part of the surgeon ( see Quigley v. Jabbur, 124 A.D.2d 398, 399-400; cf. Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 496-497). Further, even if plaintiff had met her initial burden on the motion, defendants submitted proof in admissible form that the procedure involves a risk of failure that, "even with adherence to the appropriate standard of care, cannot be eliminated," thereby raising a triable issue of fact ( Gushlaw v. Roll, 290 A.D.2d 667, 668).