Jo'ell Sheppard-Mobley v Leslie A. King

Sheppard-Mobley v King 2004 NY Slip Op 04695 [8 AD3d 358] June 7, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Jo'ell Sheppard-Mobley et al., Respondents,
v
Leslie A. King et al., Defendants, and Ira J. Spector, Appellant.

—[*1]

In an action to recover damages for medical malpractice, etc., the defendant Ira J. Spector appeals from an order of the Supreme Court, Kings County (Levine, J.), dated September 13, 2002, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment dismissing so much of the seventh cause of action as sought to recover damages against the appellant based upon lack of informed consent and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed, with costs payable to the plaintiffs.

As conceded by the plaintiffs during oral argument, Dr. Ira J. Spector was entitled to summary judgment dismissing so much of the seventh cause of action as sought to recover damages against him based upon lack of informed consent.

As to the remaining claims against him, however, Dr. Spector failed to make a prima facie showing of his entitlement to judgment as a matter of law by eliminating all triable issues of fact. In particular, there is a question of fact as to whether Dr. Spector undertook to treat the plaintiff [*2]Karen Sheppard, thereby creating a physician-patient relationship (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, 269 AD2d 443 [2000]; Bienz v Central Suffolk Hosp., 163 AD2d 269, 270 [1990]). Moreover, assuming the existence of a physician-patient relationship, Dr. Spector also failed to establish that any care he provided to Sheppard was not a departure from good and accepted medical practice, and that any such departure was not a proximate cause of Sheppard's injuries (see Wienk-Evans v North Shore Univ. Hosp. at Glen Cove, supra).

The appellant's remaining contention is without merit. Florio, J.P., S. Miller, Crane and Rivera, JJ., concur.