Henry v Duncan

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Henry v Duncan 2019 NY Slip Op 00960 Decided on February 7, 2019 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2019
Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ.
8334 805239/15

[*1]Marlene Henry, Plaintiff-Appellant,

v

Karen Duncan, et al., Defendants-Respondents.



Sim & Record, LLP, Bayside (Sang J. Sim of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Janet L. Zaleon of counsel), for respondents.



Order, Supreme Court, New York County (George J. Silver, J.), entered February 14, 2018, which granted defendants' motion for summary judgment dismissing the complaint sounding in medical malpractice, unanimously affirmed, without costs.

Plaintiff alleged personal injuries resulting from defendants' negligence in the performance of a pelvic surgery. Defendants established their entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's injury was not a result of a departure from the accepted standard of medical practice, but rather due to a known risk that may occur despite competent surgical care having been provided

(see Alvarado v Miles, 32 AD3d 255 [1st Dept 2006], affd 9 NY3d 902 [2007]).

In opposition, plaintiff failed to raise a triable issue of fact. The evidence plaintiff submitted was speculative, conclusory, and insufficient to raise an issue of fact as to whether defendants departed from the standard of care or whether such alleged departures were a proximate cause of her alleged injuries (see Jackson v Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine, 146 AD3d 572 [1st Dept 2017]). The injury itself cannot be the only basis to conclude that a departure occurred (Montilla v St. Luke's-Roosevelt Hosp., 147 AD3d 404, 407 [1st Dept 2017]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2019

CLERK