Opinion
(1541) CA 01-01586
December 21, 2001.
(Appeal from Order of Supreme Court, Oneida County, Murad, J. — Summary Judgment.)
PRESENT: WISNER, J.P., HURLBUTT, KEHOE AND BURNS, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
Supreme Court properly denied that part of the motion of Iqbal Zafar Hamid, M.D. (defendant) seeking summary judgment dismissing the cause of action for negligence against him. Although defendant sustained his initial burden, plaintiffs raised triable issues of fact concerning fault and causation ( see generally, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325-327; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Kremer v. Buffalo Gen. Hosp., 269 A.D.2d 744, 745). The court erred, however, in denying that part of the motion of defendant seeking summary judgment dismissing the cause of action for lack of informed consent against him. Defendant sustained his initial burden by establishing that he elicited the informed consent of plaintiff Frank Lucenti to the surgery, and plaintiffs failed to raise a triable issue of fact by the conclusory affirmation of their expert ( see, Lynn G. v. Hugo, 96 N.Y.2d 306, 309-310; Gennaro v. Dziuban [appeal No. 2] , 277 A.D.2d 939, 939-940; Dunlop v. Sivaraman, 272 A.D.2d 570; Romatowski v. Hitzig, 227 A.D.2d 870, 871, lv dismissed in part and denied in part 89 N.Y.2d 915). We therefore modify the order by granting the motion of defendant in part and dismissing the cause of action for lack of informed consent against him.