Santiago v. Filstein

• Decision Date: 07 December 2006
• Docket Number: 9175.,9176.
• Citation: 826 N.Y.S.2d 216,35 A.D.3d 184,2006 NY Slip Op 09109
• Parties: ORLANDO SANTIAGO, Appellant, v. MARK FILSTEIN, M.D., Respondent, et al., Defendant.
• Court: New York Supreme Court — Appellate Division

35 A.D.3d 184

826 N.Y.S.2d 216

2006 NY Slip Op 09109

ORLANDO SANTIAGO, Appellant, v. MARK FILSTEIN, M.D., Respondent, et al., Defendant.

9175.

9176.

Appellate Division of the Supreme Court of the State of New York, First Department.

Decided December 7, 2006.

Judgment, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about July 21, 2005, dismissing the action as against defendant Dr. Mark Filstein, M.D., and bringing up for review an order, same court and Justice, entered July 6, 2005, which granted defendant Filstein's motion for summary judgment, unanimously reversed, on the law, without costs, the judgment vacated, Filstein's motion denied and the complaint reinstated as against him. Appeal from the aforesaid order unanimously dismissed, without costs.

This action for medical malpractice and lack of informed consent arises from defendant Filstein's performance of penile augmentation surgery on plaintiff. After discovery, defendant moved for summary judgment, relying primarily on his own affidavit, wherein he offered his medical opinion that his treatment of plaintiff both during and after the surgery did not deviate from good and accepted medical practice, and further, that he had "adequately informed [plaintiff] of the reasonably foreseeable risks and complications resulting from the penile widening and penile lengthening procedure."

Supreme Court granted defendant's motion for summary judgment, finding that his "detailed, specific and factual" affidavit concerning his treatment of plaintiff and his explanation of the risks, in addition to the consent form signed by plaintiff, were sufficient to establish prima facie entitlement to judgment as a matter of law. With regard to plaintiff's opposition, the court held that plaintiff could not rely on two of the departures identified in his expert's "conclusory" affidavit, since they were not included in plaintiff's bill of particulars. The court also held that plaintiff's evidence failed to raise a triable issue as to the alleged lack of informed consent. We reverse.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985] [citations omitted]).

Contrary to the motion court's characterization of defendant's affidavit as "detailed, specific and factual," we find that such affidavit was wholly conclusory and failed to meet his initial burden of demonstrating an absence of medical malpractice (see id. at 853 [bare conclusory assertions by defendants that they did not deviate from good and accepted medical practice, with no factual relationship to alleged injury, insufficient to meet burden on summary judgment]). The affidavit merely provides a factual account of defendant's appointments with and treatment of plaintiff, accompanied by broad statements such as "at no point in time during my treatment of [plaintiff] did I depart from good and accepted medical practice," and "it was appropriate for me to perform a penile augmentation procedure" upon plaintiff. In our view, these statements were insufficient to meet defendant's initial burden on the motion, particularly since he was acting as his own expert witness and admitted that "there have been no long-term studies" concerning penile augmentation procedures. Accordingly, defendant's motion should have been denied, at least with respect to the malpractice claim, without consideration of plaintiff's opposition.

In...