L. Dembin & Associates, P.C., New York, NY (Ellen S.
Davis of counsel), for appellant.
Keller, O'Reilly & Watson, P.C., Woodbury, NY (Scott
C. Watson and Jessica L. Darrow of counsel), for respondents.
C. DILLON, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX JOSEPH
J. MALTESE, JJ.
DECISION & ORDER
action to recover damages for medical malpractice and lack of
informed consent, the plaintiff appeals from a judgment of
the Supreme Court, Queens County (Nahman, J.), entered
September 19, 2014, which, upon the granting of the
defendants' motion pursuant to CPLR 4401, made at the
close of the plaintiff's case, for judgment as a matter
of law dismissing the complaint insofar as asserted against
the defendants Nicole M. Polin, Arash Salemi, and New
York-Presbyterian/Weill Cornell Hospital, is in favor of
those defendants and against her, dismissing the complaint
insofar as asserted against those defendants.
that the judgment is affirmed, with costs.
October 23, 2007, the plaintiff was admitted to the defendant
New York-Presbyterian/Weill Cornell Hospital (hereinafter the
hospital) and underwent two cardiac catheterization
procedures performed by the defendant Nichole M. Polin. The
next day, she underwent coronary artery bypass surgery
performed by the defendant Arash Salemi. In March 2010, the
plaintiff commenced this action against the defendants to
recover damages for medical malpractice and lack of informed
consent arising from the surgeries. At the ensuing jury
trial, the defendants moved pursuant to CPLR 4401, at the
close of the plaintiff's case, to dismiss the complaint
insofar as asserted against Polin, Salemi, and the hospital.
The Supreme Court granted the motion and dismissed the
be awarded judgment as a matter of law pursuant to CPLR 4401,
a defendant must show that, upon viewing the evidence in the
light most favorable to the plaintiff, there is no rational
process by which the jury could find for the plaintiff
against the moving defendant" (Pitt v New York City
Tr. Auth, 146 A.D.3d 826, 827 [internal quotation marks
omitted]; see Szczerbiak v Pilat, 90 N.Y.2d 553,
556; Santos v Deanco Servs., Inc., 142 A.D.3d 137,
143-144). "In considering such a motion, trial courts
must afford the party opposing the motion every inference
which may properly be drawn from the facts presented, and the
facts must be considered in a light most favorable to the
nonmovant'" (Santos v Deanco Servs., Inc.,
142 A.D.3d at 144, quoting Rumford v Singh, 130
A.D.3d 1002, 1004 [internal quotation marks omitted]).
order to establish a prima facie case of medical malpractice,
a plaintiff must prove " (1) the standard of care in the
locality where the treatment occurred, (2) that the
defendant[s] breached that standard of care, and (3) that the
breach of the standard was the proximate cause of
injury'" (Deadwyler v North Shore Univ. Hosp. at
Plainview, 55 A.D.3d 780, 781, quoting Berger v
Becker, 272 A.D.2d 565, 565; see Brown v Shah,
109 A.D.3d 948, 949; Dockery v Sprecher, 68 A.D.3d
1043, 1045; Harper v Findling, 38 A.D.3d 601, 602;
Lyons v McCauley, 252 A.D.2d 516, 517). "
Expert testimony is necessary to prove a deviation from
accepted standards of medical care and to establish proximate
cause'" (Novick v South Nassau Communities
Hosp., 136 A.D.3d 999, 1000, quoting Lyons v
McCauley, 252 A.D.2d at 517; see Sushchenko v Dyker
Emergency Physicians Serv., P.C., 86 A.D.3d 638, 639;
Dockery v Sprecher, 68 A.D.3d at 1045; Berger v
Becker, 272 A.D.2d at 565).
the plaintiff failed to adduce expert testimony to establish
the standards of care applicable to the performance and
interpretation of cardiac diagnostics tests and the
development and execution of treatment plans; that the
defendants departed from good and accepted practice in
interpreting the results of the catheterizations, in making
the determination to proceed with bypass surgery, or in
performing the surgery; or that the performance of a second
catheterization or the failure to perform an intravascular
ultrasound proximately caused her injuries. The plaintiff,
therefore, failed to establish a prima facie case of medical
malpractice (see Brown v Shah, 109 A.D.3d at 949;
Perricone-Bernovich v Gentle Dental, 60 A.D.3d 744,
745; Deadwyler v North Shore Univ. Hosp. at
Plainview, 55 A.D.3d at 781; Godlewska v
Niznikiewicz, 8 A.D.3d 430, 431).
plaintiff also failed to establish a prima facie case of lack
of informed consent due to the lack of any expert testimony
adduced during her case in support of the alleged qualitative
insufficiency of her consent (see CPLR 4401;
Orphan v Pilnik, 15 N.Y.3d 907, 908; Deadwyler v
North Shore Univ. Hosp. at Plainview, 55 A.D.3d at 781).
plaintiff's remaining contentions are without merit.
the Supreme Court properly granted the defendants' motion
pursuant to CPLR 4401, made at the close of the
plaintiff's case, for judgment as a matter of law
dismissing the complaint insofar as asserted against Palin,
Salemi, and the hospital (see Brown v Shah, 109
A.D.3d at 949; Perricone-Bernovich v Gentle Dental,
60 A.D.3d at 745; Deadwyler v ...