April C. Haga v Robert Pyke

Haga v Pyke 2003 NY Slip Op 20204 [2 AD3d 1413] December 31, 2003 Appellate Division, Fourth Department As corrected through Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 25, 2004

April C. Haga, Appellant,
v
Robert Pyke, M.D., et al., Respondents.

—

Appeal from that part of an order of Supreme Court, Jefferson County (McGuire, J.), entered September 24, 2002, that denied plaintiff's cross motion seeking partial summary judgment on liability.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action to recover damages arising from a pregnancy following an unsuccessful surgical sterilization procedure. Supreme Court properly denied that part of plaintiff's cross motion seeking partial summary judgment on liability based upon the doctrine of res ipsa loquitur. Contrary to plaintiff's contention, a lay jury would not be able to draw an inference of negligence merely from the failure of the procedure, and plaintiff submitted no expert proof that the procedure is ordinarily successful absent negligence on the part of the surgeon (see Quigley v Jabbur, 124 AD2d 398, 399-400 [1986]; cf. Kambat v St. Francis Hosp., 89 NY2d 489, 496-497 [1997]). Further, even if plaintiff had met her initial burden on the motion, defendants submitted proof in admissible form that the procedure involves a risk of failure that, "even with adherence to the appropriate standard of care, cannot be eliminated," thereby raising a triable issue of fact (Gushlaw v Roll, 290 AD2d 667, 668 [2002]). Present—Pigott, Jr., P.J., Green, Pine, Hurlbutt and Kehoe, JJ.