Opinion
CA 02-02669
October 2, 2003.
Appeal from an order of Supreme Court, Erie County (Notaro, J.), entered September 3, 2002, which, inter alia, granted defendants' motions for preclusion.
HOGAN WILLIG, PLLC, AMHERST (JOHN B. LICATA OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
FELDMAN, KIEFFER HERMAN, LLP, BUFFALO (JAMES E. EAGAN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS HARIHARIER SUBRAMANIAN, M.D., AND EHSAN AFSHANI, M.D.
ROACH, BROWN, McCARTHY GRUBER, P.C., BUFFALO (JOEL J. JAVA, JR., OF COUNSEL), FOR DEFENDANTS-RESPONDENTS CHILDREN'S HOSPITAL OF BUFFALO, ALBERT RENE TANO, M.D., AND LON G. BITZER, M.D.
PRESENT: PIGOTT, JR., P.J., GREEN, SCUDDER, GORSKI, AND HAYES, JJ.
MEMORANDUM AND ORDER
Now, upon reading and filing the stipulation discontinuing the appeal with respect to defendant Ehsan Afshani, M.D. signed by the attorneys for the parties on September 29, 2003,
It is hereby ORDERED that said appeal insofar as it concerns defendant Ehsan Afshani, M.D. be and the same hereby is unanimously dismissed upon stipulation and the order is affirmed without costs.
Memorandum:
Plaintiffs did not oppose defendants' motions for preclusion and, accordingly, failed to preserve for our review their contention that Supreme Court erred in granting that relief ( see Lally v New York City Health Hosps. Corp., 277 A.D.2d 9, appeal dismissed 96 N.Y.2d 896). In any event, plaintiffs' contention is without merit. Defendants' motions sought to preclude plaintiffs from offering proof at trial that plaintiff Manjari Sharma may have suffered an increased risk of infertility as a result of defendants' alleged malpractice. "The threat of future harm, not yet realized, is not enough" to support an award of damages (MacMillan v. Kavanaugh, 267 A.D.2d 1014, lv dismissed 94 N.Y.2d 943).