Opinion
2002-06668, 2002-08755
Argued October 21, 2003.
November 17, 2003.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from (1) so much of an order of the Supreme Court, Queens County (Weiss, J.), dated June 14, 2002, as granted those branches of the separate motions of the defendants Joseph Blanco and TLC The Laser Center (Northeast), Inc., which were for summary judgment dismissing the cause of action sounding in medical malpractice, and (2) an order of the same court dated August 19, 2002, which denied the plaintiff's motion, denominated as one for leave to renew and reargue, but which in fact was for leave to reargue, and the defendants separately cross-appeal, as limited by their briefs, from so much of the order dated June 14, 2002, as denied those branches of their separate motions which were for summary judgment dismissing the cause of action sounding in lack of informed consent.
Richard Frank, New York, N.Y. (Thomas Torto [Mary Ellen O'Brien] of counsel), for appellant-respondent.
Charles X. Connick, PLLC, Mineola, N.Y. (Barbara A. Myers of counsel), for respondent-appellant Joseph Blanco.
L'Abbate, Balkan, Colavita Contini, LLP, Garden City, N.Y. (Ralph A. Catalano and Michele G. Levin of counsel), for respondent-appellant TLC The Laser Center (Northeast), Inc.
Before: A. GAIL PRUDENTI, P.J., MYRIAM J. ALTMAN, NANCY E. SMITH, STEPHEN G. CRANE, JJ.
DECISION ORDER
ORDERED that the appeal from the order dated August 19, 2002, is dismissed; and it is further,
ORDERED that the order dated June 14, 2002, is affirmed insofar as appealed from; and it is further,
ORDERED that the order dated June 14, 2002, is reversed insofar as cross-appealed from, and those branches of the separate motions of the defendants Joseph Blanco and TLC The Laser Center (Northeast), Inc., which were for summary judgment dismissing the cause of action sounding in lack of informed consent are granted; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The plaintiff's motion, denominated as one for leave to renew and reargue, was in fact a motion for leave to reargue ( see CPLR 2221[d][2]), the denial of which is not appealable ( see Sabetfard v. Smith, 306 A.D.2d 265, 266).
The defendants made a prima facie showing of entitlement to judgment as a matter of law on the cause of action sounding in medical malpractice, tendering sufficient evidence to demonstrate the absence of any material issue of fact. In opposition, the plaintiff's submissions were insufficient to raise a triable issue of fact ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Mendez v. City of New York, 295 A.D.2d 487). The plaintiff failed to establish that the defendant Dr. Blanco's choice of the Photorefractive Keratectomy ("PRK") procedure over the Laser In-Situ Keratomileusis ("LASIK") procedure was the proximate cause of the corneal infections which she sustained, or that such infections could have been prevented with the use of another prophylactic antibiotic ( see Nestorowich v. Ricotta, 97 N.Y.2d 393, 398-400; Lyons v. McCauley, 252 A.D.2d 516, 517; Fallon v. Loree, 136 A.D.2d 956; Schreiber v. Cestari, 40 A.D.2d 1025, 1026).
Given that the plaintiff cannot establish proximate cause, the defendants were also entitled to summary judgment on the cause of action sounding in lack of informed consent ( see Public Health Law § 2805-d, [3]; Mondo v. Ellstein, 302 A.D.2d 437, 438; Spano v. Bertocci, 299 A.D.2d 335, 337-338; Bernard v. Block, 176 A.D.2d 843, 848).
PRUDENTI, P.J., ALTMAN, SMITH and CRANE, JJ., concur.