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FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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DINO BONAVITA, Index No.: 611506/2018
Plaintiffs,
-against- AFFIRMATION IN SUPPORT
SYED MUJAHID SAYEED, M.D., PRECISION REFER TO:
SURGERY OF NEW YORK, P.C., NORTH SHORE HON. THOMAS RADEMAKER
UNIVERSITY HOSPITAL, and NORTHWELL
HEALTH, IAS PART: 21
Defendants. RETURN DATE: NOVEMBER 1, 2022
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KERRIANNE RUSSO, ESQ., an attorney duly admitted to practice before the Courts of
the State of New York, affirms the following to be true under penalty of perjury:
1. I am an associate of the firm RUBIN PATERNITI GONZALEZ RIZZO
KAUFMAN, LLP, attorneys for defendant, NORTH SHORE UNIVERSITY HOSPITAL, and as
such, I am fully familiar with the facts and circumstances of the within matter through review and
handling of the litigation file as maintained by this office.
2. This affirmation is respectfully submitted in support of the instant Motion seeking
an Order: (1) pursuant to CPLR § 3212 granting summary judgment as to defendant, NORTH
SHORE UNIVERSITY HOSPITAL, dismissing the Complaint in its entirety on the merits with
prejudice; (2) directing the Clerk of the Court to enter judgment against plaintiff and in favor of
the moving defendant, accordingly and: (3) for such other and further relief that this Court deems
just and proper.
PRELIMINARY STATEMENT
3. This matter involves allegations that during the plaintiff’s July 21, 2017,
presentation to the emergency department of North Shore University Hospital, while under the
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care of co-defendant plastic surgeon Syed Sayeed, M.D., the collective defendants failed to remove
all foreign glass from plaintiff’s right hand following a self-induced laceration and properly
perform an exploration of penetrating wounds of the right hand, repair of the extensor tendon and
lateral bands of right finger metacarpal joint, repair of metacarpophalangeal joint capsule right ring
finger; and repair of the extensor tendon at the proximal interphalangeal joint right index finger.
As a result, plaintiff alleges that he sustained permanent injury to his right fourth finger, right
fourth finger extensor tendon, right fourth finger metacarpophalangeal joint capsule and weakness
to the right hand and index finger.
4. Furthermore, plaintiff alleges that North Shore University Hospital is also liable for
the care and treatment rendered by Dr. Sayeed in his private offices from July 25, 2017, through
October 12, 2017.
5. Importantly, as will be developed, there are no independent claims of negligence
asserted against the staff of North Shore University Hospital. The medical records and testimony
have established that co-defendant Dr. Sayeed was solely responsible for the performance of the
procedures in question and for following the plaintiff as a private patient in his office.
6. As detailed in the affirmations of board-certified Emergency Medicine specialist
Robert Meyer, M.D. and board-certified Radiologist Kevin Mennitt, M.D., the treatment rendered
by the staff of North Shore University Hospital was within good and accepted standards of medical
and radiologic practice and no act or omission by the staff of North Shore University Hospital
caused or contributed to the plaintiff’s alleged injuries. (The affirmation of Robert Meyer, MD is
annexed here to as Exhibit “A” and the affirmation of Kevin Mennitt, MD is annexed hereto as
Exhibit “B”).
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PROCEDURAL HISTORY
7. This action was commenced on August 24, 2018, by the filing of a Summons and
Verified Complaint. Annexed hereto as “Exhibit C”.
8. Issue was joined by the serving of the answer on behalf of North Shore University
Hospital and Northwell Health, Inc. on September 20, 2018. Annexed hereto as “Exhibit D”.
9. Plaintiff served a Verified Bill of Particulars as to NSUH on October 17, 2018. An
Amended Verified Bill of Particulars was served on January 15, 2019. Annexed hereto as “Exhibit
E”. Per Bills of Particulars, the allegations against co-defendant Dr. Sayeed and North Shore
University Hospital are essentially identical.
10. Plaintiff Dino Bonavita was deposed on January 28, 2020. A copy of the transcript
is attached hereto as “Exhibit F”.
11. Co-defendant Dr. Sayeed was deposed on September 23, 2020. A copy of the
transcript is attached hereto as “Exhibit G”.
12. The plaintiff’s wife, non-party witness Elisa Bonavita, was deposed on February
10, 2021. A copy of the transcript is attached hereto as “Exhibit H”.
13. Plaintiff did not seek to depose a witness on behalf of North Shore University
Hospital.
14. All parties entered into a Stipulation of Discontinuance with prejudice as to
Northwell Health, Inc. on May 18, 2022. Such stipulation was filed with the Court. Annexed hereto
as “Exhibit I”.
15. Plaintiff filed a Note of Issue and Certificate of Readiness on August 15, 2022.
Annexed hereto as “Exhibit J”. As such, the within motion is timely.
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16. Thereafter, co-defendant Dr. Sayeed moved for summary judgment; the motion is
pending at the time of submission of this motion. Annexed hereto as “Exhibit M.” Without
commenting upon the sufficiency of the moving papers of Dr. Sayeed or the affirmation in
opposition by plaintiff’s counsel, it is respectfully submitted that should this Court grant summary
judgment to Dr. Sayeed, summary judgment is likewise warranted as to North Shore University
Hospital as the alleged acts of negligence are based on the independent care of Dr. Sayeed, not the
staff of North Shore University Hospital.
STATEMENT OF MATERIAL FACTS
17. The facts underlying the within motion are set forth in the attached Statement of
Material Facts which is submitted pursuant to Uniform Rule 202.8-g and is hereby incorporated
by reference into this Affirmation.
SUMMARY JUDGMENT STANDARD
18. “The requisite elements of proof in a medical malpractice action are a deviation or
departure from accepted practice and evidence that such departure was a proximate cause of
injury.” Khosrova v. Westermann, 109 A.D.3d 965 (2nd Dept. 2013) (citations omitted).
19. For a medical provider to prevail on a motion for summary judgment, the defendant
“must make a prima facie showing of entitlement to judgment as a matter of law, tendering
sufficient evidence to demonstrate the absence of any material issues of fact”. Alvarez v. Prospect
Hospital, 68 N.Y.2d 320, 324 (1986) (citations omitted). To meet this burden, a defendant must
submit sufficient evidence to negate either of the two elements of a medical malpractice cause of
action. See Bucsko v. Gordon, 118 A.D.3d 653 (2nd Dept. 2014). The evidence may consist of
deposition testimony, medical and hospital records and an expert’s affirmation. See Sheenan
Conrades v. Winifred Masterson Burke Rehab. Hosp., 51 A.D.3d 769 (2nd Dept. 2008); Rebozo
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v. Wilen, 41 A.D.3d 457 (2nd Dept. 2007); DiMitri v. Monsouri, 302 A.D.2d 420 (2nd Dept.
2003).
20. “The burden then shift[s] to the plaintiff to lay bare her proof and to demonstrate
the existence of a triable issue of fact”. Geffner v. North Shore University Hospital, 57 A.D.3d
839 (2nd Dept. 2008) (citations omitted); see also Alvarez v. Prospect Hospital, 68 N.Y.2d 320,
324 (1986) (“the burden shifts to the party opposing the motion for summary judgment to produce
evidentiary proof in admissible form sufficient to establish the existence of material issues of fact
which require trial of the action”) citing Zuckerman v City of New York, 49 N.Y.2d 557 (1980).
21. An expert’s affirmation in opposition is required of plaintiff, however, will fail as
a matter of law if the opinions offered are nothing more than conclusory, speculative, or fail to
refute the specific assertions made by the experts of the moving party, including the issue of
proximate cause. See Hernandez v. Nwaishienyi, 48 N.Y.S.3d 467, 469-470 (2nd Dept. 2017)
(“The affirmation of the plaintiff's expert, * * * was conclusory and speculative and failed to
address specific assertions made by [defendants’ experts], including those regarding proximate
cause”); Sukhraj v. N.Y. City Health & Hosps. Corp., 106 A.D.3d 809 (2nd Dept. 2013) (summary
judgment granted where “the plaintiffs' expert did not address important elements set forth by the
defendant's expert regarding causation”); DiMitri v. Monsouri, 302 A.D.2d 420 (2nd Dept. 2003)
(“The plaintiff's expert also failed to address the contentions of Dr. Levinsohn's expert regarding
the cause of the plaintiff's injury. Accordingly, the affirmation was insufficient to raise a triable
issue of fact”); Rebozo v. Wilen, 41 A.D.3d 457 (2nd Dept. 2007) (the plaintiff’s expert must
establish how the plaintiff’s injuries would have been less severe with an earlier diagnosis).
22. Summary judgment cannot be denied simply if a plaintiff’s expert disagrees with
the defendant's expert, as competing experts almost always disagree; the question is whether the
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claim of plaintiff’s expert is sufficiently supported by the records to raise an issue for the trier of
fact. See DeJesus v. Mishra, 93 A.D.3d 135 (1st Dept. 2012). A shadowy semblance of an issue
is not enough to defeat the motion. See SJ Capelin Associates, Inc. v. Globe Manufacturing, 36
N.Y.2d 338 (1974).
23. Moreover, a “hospital may not be held vicariously liable for the malpractice of a
private attending physician who is not an employee and may not be held concurrently liable unless
its employees committed independent acts of negligence or the attending physician's orders were
contraindicated by normal practice such that ordinary prudence required inquiry into the
correctness of the same”. Toth v. Bloshinsky, 39 A.D.3d 848, 850 (2nd Dept. 2007) (citations
omitted). See Gattling v. Sisters of Charity Med. Ctr., 150 A.D.3d 701 (2nd Dept. 2017) (“A
hospital may not be held liable for injuries sustained by a patient who is under the care of a private
attending physician chosen by the patient where the resident physicians and nurses employed by
the hospital merely carry out the orders of the private attending physician”); Tomeo v. Beccia, 127
A.D.3d 1071, 1073 (2nd Dept. 2015) (summary judgment granted to the hospital as the Court held
that the private attending physician’s orders were not “contraindicated by normal practice, such
that ordinary prudence required inquiry into the correctness of those orders.”).
24. Stated otherwise, a hospital and its staff will be insulated from liability absent
evidence that they exercised any independent medical judgment apart from the private physician.
See Buchheim v. Sanghavi, 299 A.D.2d 229, 230 (1st Dept. 2002); Crawford v. Sorkin, 41 A.D.3d
278, 280 (1st Dept. 2007).
25. “Nor is affiliation of a doctor with a hospital or other medical facility, not
amounting to employment, alone sufficient to impute the doctor's negligent conduct to the hospital
or facility”. Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79 (1986) citing Ruane v. Niagara Falls Mem'l
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Med. Ctr., 60 N.Y.2d 908, 909 (1983) (“The fact that the doctor also happened to be affiliated with
the hospital, but not employed by the hospital, is not alone sufficient to impute the doctor's conduct
following the implantation of the devices to the hospital.”).
26. The Court in Spiegel v. Beth Israel Med. Ctr.-Kings Highway Div., held that the
plaintiffs failed to raise a triable issue of fact as to whether the hospital's staff committed
independent acts of malpractice and as to whether any order given by [the private attending] was
so contraindicated that it should not have been followed by the hospital's staff”. 149 A.D.3d 1127
(2nd Dept. 2017).
27. Likewise, summary judgment on behalf of Lenox Hill Hospital was deemed
appropriate as it was not vicariously liable for the acts of the private co-defendant physician in the
matter of Pratt v. Haber, 105 A.D.3d 429 (1st Dept. 2013). Defendants made prima facie showing
that defendant Gregory Haber, M.D., was not an employee or agent of Lenox Hill and that Lenox
Hill was therefore not liable for Dr. Haber's alleged malpractice (citations omitted).
SUMMARY JUDGMENT MUST BE GRANTED TO
NORTH SHORE UNIVERSITY HOSPITAL
AS PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE SHOWING OF
ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW
28. Based upon a review of the medical records, the testimony elicited at examinations
before trial, and the affirmations of expert emergency medicine specialist Robert Meyer, MD and
radiologist Kevin Mennitt, MD, it is clear that the care rendered by the staff of North Shore
University Hospital was within the good and accepted standards of medical practice.
29. Emergency Medicine expert Robert Meyer, MD states the following with a
reasonable degree of medical certainty:
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Summary of Pertinent Facts
Plaintiff, then 48-years-old, arrived at the Emergency Department of North Shore
University Hospital via ambulance on July 21, 2017, with a chief complaint of a
right-hand laceration.
Upon arrival, plaintiff was timely triaged. Chief complaint was a laceration to the
right hand by glass. Treatment prior to arrival consisted of bleeding control. Vitals
were stable as follows: BP 164/84, heart rate 95, respiration rate 13, and O2sat 99%
on room air.
The ED RN then timely evaluated plaintiff. As per the record, plaintiff reported that
about half an hour prior, he was swinging his arms in his home and hit a picture
frame on the wall. EMS arrived at plaintiff’s home and brought plaintiff into the
ED. Plaintiff reported positive sensation to all fingers and further reported pain on
movement to the left fourth and fifth fingers. Plaintiff was alert and oriented x4.
The ED providers were appropriately notified.
Eun Ryang Jang, NP evaluated and noted plaintiff complained of right dominant
hand lacerations status post hitting a glass frame which then burst into many pieces.
Plaintiff otherwise denied other injuries or sensory changes to his fingers.
Following a thorough physical examination, NP Jang noted “multiple right-hand
lacerations to the 2nd, 3rd and 4th phalanx, PIP dorsum superficial lacerations, +
4th phalanx, MCP medial aspect 2.5 cm laceration with extensor tendon laceration,
diminished extension, 5th phalanx MCP, medial aspect 2cm laceration with full
ROMs. No visualized FB [foreign body].”
ED attending Phillip Underwood, MD likewise evaluated and then noted plaintiff
was complaining of pain over the dorsum of the right hand but denied any
numbness or paresthesia. Based upon his examination, Dr. Underwood
documented there was extensor lag of the fourth finger and that plaintiff was unable
to actively extend his finger. Dr. Underwood appreciated that there were no obvious
foreign bodies, and the tendon was not exposed.
Thereafter, NP Jang properly ordered administration of a tetanus shot, IV Ancef
and stat x-ray of the right hand to rule out foreign bodies. A plastic surgery consult
was timely called.
Urgent imaging of the right hand was performed and interpreted by the radiologist
as follows: “No radiopaque foreign body is visualized. There is no acute fracture
or dislocation of the right hand. Mild first CMC joint arthrosis is noted.” (emphasis
added).
Co-defendant plastic surgeon Syed Sayeed, MD consulted shortly thereafter.
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Dr. Sayeed obtained an independent history regarding the mechanism of injury and
performed his own examination. The record reflects that Dr. Sayeed assessed
multiple lacerations to the right hand over the small finger at the level of the MCP
joint, over the PIP joint of the ring finger as well as the base of the ring finger on
the radial side extending onto the dorsum of the hand. A wound was also present
over the PIP joint of the middle finger and there was a wound over the PIP joint to
the index finger. Plaintiff was unable to extend at the MCP joint on the right ring
finger as well as was unable to extend at the PIP joint. Notably, Dr. Sayeed testified
that he did not observe or palpate any foreign bodies during his evaluation.
In addition, Dr. Sayeed personally reviewed the imaging of the plaintiff’s hand and
as per his testimony there was no visible foreign bodies.
Importantly, during the consultation, plaintiff informed Dr. Sayeed that he
personally knew hand surgeon and plastic surgeon, Burt Greenberg, M.D. Dr.
Sayeed testified that he informed plaintiff that the skin could be closed, and plaintiff
could be managed as an outpatient by Dr. Greenberg, or if plaintiff chose, Dr.
Sayeed could perform the procedure in the Emergency Room. Together, plaintiff
and Dr. Sayeed called Dr. Greenberg who advised that Dr. Sayeed could perform
the repair surgery in his place. Dr. Sayeed explained to plaintiff that the injuries
could be safely repaired in the ED, rather than going to the operating room, to which
plaintiff agreed to undergo the procedure, as performed by Dr. Sayeed. Risks,
benefits and alternatives of local exploration were reviewed with plaintiff by Dr.
Sayeed.
Accordingly, under the exclusive care of Dr. Sayeed, plaintiff underwent
exploration of the penetrating wounds, repair of extensor tendon and lateral bands
of the right ring finger metacarpal joint, repair of metacarpophalangeal joint capsule
of the right ring finger, repair of extensor tendon at proximal interphalangeal joint
right index finger, debridement of skin and subcutaneous tissue of the right hand,
simple repairs measuring 7 cm on the right dorsal hand and application of a short
arm splint.
Dr. Sayeed’s exploration findings included injury to the extensor tendon at the
proximal interphalangeal joint on the index finger as well as injuries to the extensor
tendon and lateral band mechanism on the base of the right ring finger overlying
the metacarpal phalangeal joint and injury to the joint capsule.
Plaintiff was then discharged home. Upon discharge, plaintiff was instructed to
elevate his hand, continue use of the splint, to take Motrin 600 mg every eight (8)
hours for pain and Keflex 500 mg every six (6) hours for seven (7) days. Plaintiff
was to follow up with Dr. Sayeed as an out-patient. Plaintiff was further instructed
to follow up with his primary care provider 24-48 hours after discharge and to seek
immediate medical care for any new or worsening signs or symptoms.
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The Staff of North Shore University Hospital
Acted Within Good and Accepted Medical Practice and
Did Not Cause or Contribute to the Plaintiff’s Injuries
It is my opinion, to a reasonable degree of medical certainty that all care and
treatment rendered to plaintiff during his July 21, 2017, presentation to the NSUH
ED was appropriate and was at all times in accordance with good and accepted
medical practice, and that no act or omission by the staff of North Shore University
Hospital caused or contributed to any of the injuries asserted by the plaintiff herein.
The staff elicited a detailed history as to the mechanism of injury and same is
properly documented in the chart as having been caused by shattered glass.
Thereafter, physical examination of the wound to assess the scope of injury was
properly undertaken by the NP and the ED attending. Ancef and a tetanus vaccine
were then properly ordered to counter the possibility of infection and/or secondary
injury. X-rays of the hand were likewise ordered to primarily assess for stability of
the hand. Lastly, the staff of NSUH properly ordered a consultation by plastic
surgery who would be responsible for directing management and repair of the
wounds.
Accordingly, co-defendant plastic surgeon Syed Sayeed, MD consulted. Plaintiff
explained to Dr. Sayeed that he had a treating plastic surgeon, Burt Greenberg, MD
and after speaking with Dr. Greenberg, the plaintiff chose to receive care from Dr.
Sayeed. Of note, Dr. Sayeed testified that he was not an employee of North Shore
University Hospital but rather a private attending.
As the consulting specialist, Dr. Sayeed obtained his own history, reviewed the x-
ray images, performed an examination, and after explaining the treatment options,
undertook exploration and repair of the plaintiff’s hand. Without commenting upon
the appropriateness of the actions undertaken by Dr. Sayeed, the acts or omissions
of Dr. Sayeed were his alone and the staff properly relied upon his directives as a
specialist.
Whether additional imaging should have been ordered was in the sole discretion of
Dr. Sayeed. Moreover, which procedures would be undertaken, where the
procedures would be performed, when the procedures would be performed,
explaining of the procedures, and obtaining informed consent for same, and the
execution of such procedures were under the full autonomy of Dr. Sayeed.
Likewise, all instructions for post-discharge care were properly directed by Dr.
Sayeed.
Accordingly, the staff of NSUH timely and properly obtained the pertinent history,
performed physical examinations, ordered appropriate medications and diagnostic
testing, and properly relied upon the directives of the consulting plastic surgeon Dr.
Sayeed.
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30. Radiology expert Kevin Mennitt, MD states the following with a reasonable degree
of medical certainty:
All Care And Treatment Rendered In Regard to Radiologic Imaging
At North Shore University Hospital Was At All Times In Accordance With Good And Accepted
Radiologic Practice And Did Not Cause Or Contribute To The Plaintiff’s Injuries
It is my opinion, to a reasonable degree of medical certainty that all imaging
concerning plaintiff’s right hand performed on July 21, 2017, was performed, and
interpreted in accordance with good and accepted medical and radiologic practice,
and that no act or omission by the staff or Radiology Department of North Shore
University Hospital caused or contributed to any of the injuries asserted by the
plaintiff herein.
More specifically, I have personally reviewed the July 21, 2017, x-rays and also
conclude that there is no radiopaque foreign body visualized. Quite significantly,
glass that does not contain lead cannot be seen on plain x-rays.
Furthermore, the July 21, 2017, imaging was standard and typical of an x-ray that
would be performed in an ED following a patient’s recent trauma, as they are often
unable to fully open their hand and bend their fingers. It is not the standard of care
to perform dedicated images of each finger for a patient with this type of
presentation in an ED setting.
Moreover, it is not the standard of care for a radiologist to recommend further
imaging in this instance, as this determination is decided by the consulting plastic
surgeon and/or hand surgeon.
31. The overwhelming evidence illustrated by the depositions, the affirmations of
board-certified emergency medicine specialist Robert Meyer, MD and radiologist Kevin Mennitt,
MD, and the applicable medical records, conclusively supports that North Shore University
Hospital is entitled to summary judgment as a matter of law.
THE PLAINTIFF’S CLAIM OF LACK OF
INFORMED CONSENT MUST BE DISMISSED
32. To establish a cause of action to recover damages based on lack of informed
consent, plaintiff must prove: “(1) that the person providing the professional treatment failed to
disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks
associates with the treatment, and the alternatives, that a reasonable medical practitioner would
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have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position
would not have undergone the treatment if he or she had been fully informed, and (3) that the lack
of informed consent is a proximate cause of the injury.” Alessi v. Mucciolo, 156 A.D.3d 750, 750,
67 N.Y.S.3d 270, 271 (2d Dep’t 2017), citing Spano v. Bertocci, 299 A.D.2d 335, 337–38, 749
N.Y.S.2d 275, 278 (2d Dep’t 2002).
33. The expert affirmation of Robert Meyer, MD establishes that the consulting
specialist is responsible for determining which procedures would be undertaken, when the
procedures will be performed, explaining the procedures, and obtaining informed consent for
same.
34. Dr. Sayeed’s consultation note of July 21, 2017 reflects that he had a discussion
with plaintiff concerning his injuries and the need for repair. Dr. Sayeed documented that plaintiff
agreed to the procedure after the risks, benefits and alternatives were explained. Likewise, Dr.
Sayeed’s operative report reflects that the “need for exploration was discussed with the patient. He
agreed to the procedure.” Lastly, both Dr. Sayeed and plaintiff executed the consent form.
35. Moreover, Dr. Sayeed testified that per his routine custom and practice, he
described to the patient the injuries he had sustained to his right hand. Per the testimony, Dr.
Sayeed advised plaintiff that he had an extensor tendon injury and the skin could be closed and
this could be managed as an outpatient by Dr. Greenberg, or Dr. Sayeed could safely repair it in
the ED. Dr. Sayeed testified that plaintiff asked him to call Dr. Greenberg on his cell phone, which
they did, and it was decided that Dr. Sayeed would undertake the responsibility. Exhibit G, page
10-11. Dr. Sayeed proceeded to discuss with the plaintiff what the procedure would entail and
based on their discussion the plaintiff agreed to proceed. Dr. Sayeed further testified that it is his
custom and practice that when a patient presents with the extensive injuries that plaintiff had, he
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advises that there remains a possibility of residual stiffness and a need for occupational therapy.
Exhibit G, page 11, 28.
36. Lastly, Dr. Sayeed’s own motion for summary judgment corroborates that it was
Dr. Sayeed who was charged with obtaining informed consent, not the staff of the hospital.
Exhibit M.
37. Accordingly, plaintiff’s claim for failure to obtain informed consent must be
dismissed as against North Shore University Hospital.
CONCLUSION
38. Accordingly, it is conclusively established that defendant North Shore University
Hospital acted within the good and accepted standards of medical practice and did not proximately
cause injury to the plaintiff. The overwhelming evidence illustrated by the party depositions, the
affirmations of Robert Meyer, MD and Kevin Mennitt, MD, and the applicable medical records,
conclusively supports that defendant North Shore University Hospital is entitled to judgment as a
matter of law. For this reason, summary judgment should be granted dismissing the matter in its
entirety as to defendant North Shore University Hospital.
WHEREFORE, it is respectfully requested that this Court grant the motion for summary
judgment dismissing the Complaint in its entirety as to NORTH SHORE UNIVERSITY
HOSPITAL, and for such other, further, and different relief as this Court deems just and proper.
Dated: October 12, 2022
Garden City, New York
___________________________
Kerrianne Russo, Esq.
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CERTIFICATION
Pursuant to the Uniform Rules for the Supreme Court Rule 202.8-b, this shall certify that
by the undersigned attorney filing the annexed Affirmation in Support, that the word count for this
affirmation is 4,1,4,2 words and compiles with the court count identified in Supreme Court Rule
202.8-b. In determining the word count identified, the undersign is relying upon the word-process
system (Microsoft Word) used to prepare this document.
Dated: October 12, 2022
Garden City, New York
_______________________________
Kerrianne Russo
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FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ---------------------------------------------------------------------X DINO BONAVITA, Index No.: 611506/2018 Plaintiffs, -against- AFFIRMATION IN SUPPORT SYED MUJAHID SAYEED, M.D., PRECISION REFER TO: SURGERY OF NEW YORK, P.C., NORTH SHORE HON. THOMAS RADEMAKER UNIVERSITY HOSPITAL, and NORTHWELL HEALTH, IAS PART: 21 Defendants. RETURN DATE: NOVEMBER 1, 2022 --------------------------------------------------------------------X KERRIANNE RUSSO, ESQ., an attorney duly admitted to practice before the Courts of the State of New York, affirms the following to be true under penalty of perjury: 1. I am an associate of the firm RUBIN PATERNITI GONZALEZ RIZZO KAUFMAN, LLP, attorneys for defendant, NORTH SHORE UNIVERSITY HOSPITAL, and as such, I am fully familiar with the facts and circumstances of the within matter through review and handling of the litigation file as maintained by this office. 2. This affirmation is respectfully submitted in support of the instant Motion seeking an Order: (1) pursuant to CPLR § 3212 granting summary judgment as to defendant, NORTH SHORE UNIVERSITY HOSPITAL, dismissing the Complaint in its entirety on the merits with prejudice; (2) directing the Clerk of the Court to enter judgment against plaintiff and in favor of the moving defendant, accordingly and: (3) for such other and further relief that this Court deems just and proper. PRELIMINARY STATEMENT 3. This matter involves allegations that during the plaintiff’s July 21, 2017, presentation to the emergency department of North Shore University Hospital, while under the 1 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 care of co-defendant plastic surgeon Syed Sayeed, M.D., the collective defendants failed to remove all foreign glass from plaintiff’s right hand following a self-induced laceration and properly perform an exploration of penetrating wounds of the right hand, repair of the extensor tendon and lateral bands of right finger metacarpal joint, repair of metacarpophalangeal joint capsule right ring finger; and repair of the extensor tendon at the proximal interphalangeal joint right index finger. As a result, plaintiff alleges that he sustained permanent injury to his right fourth finger, right fourth finger extensor tendon, right fourth finger metacarpophalangeal joint capsule and weakness to the right hand and index finger. 4. Furthermore, plaintiff alleges that North Shore University Hospital is also liable for the care and treatment rendered by Dr. Sayeed in his private offices from July 25, 2017, through October 12, 2017. 5. Importantly, as will be developed, there are no independent claims of negligence asserted against the staff of North Shore University Hospital. The medical records and testimony have established that co-defendant Dr. Sayeed was solely responsible for the performance of the procedures in question and for following the plaintiff as a private patient in his office. 6. As detailed in the affirmations of board-certified Emergency Medicine specialist Robert Meyer, M.D. and board-certified Radiologist Kevin Mennitt, M.D., the treatment rendered by the staff of North Shore University Hospital was within good and accepted standards of medical and radiologic practice and no act or omission by the staff of North Shore University Hospital caused or contributed to the plaintiff’s alleged injuries. (The affirmation of Robert Meyer, MD is annexed here to as Exhibit “A” and the affirmation of Kevin Mennitt, MD is annexed hereto as Exhibit “B”). 2 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 PROCEDURAL HISTORY 7. This action was commenced on August 24, 2018, by the filing of a Summons and Verified Complaint. Annexed hereto as “Exhibit C”. 8. Issue was joined by the serving of the answer on behalf of North Shore University Hospital and Northwell Health, Inc. on September 20, 2018. Annexed hereto as “Exhibit D”. 9. Plaintiff served a Verified Bill of Particulars as to NSUH on October 17, 2018. An Amended Verified Bill of Particulars was served on January 15, 2019. Annexed hereto as “Exhibit E”. Per Bills of Particulars, the allegations against co-defendant Dr. Sayeed and North Shore University Hospital are essentially identical. 10. Plaintiff Dino Bonavita was deposed on January 28, 2020. A copy of the transcript is attached hereto as “Exhibit F”. 11. Co-defendant Dr. Sayeed was deposed on September 23, 2020. A copy of the transcript is attached hereto as “Exhibit G”. 12. The plaintiff’s wife, non-party witness Elisa Bonavita, was deposed on February 10, 2021. A copy of the transcript is attached hereto as “Exhibit H”. 13. Plaintiff did not seek to depose a witness on behalf of North Shore University Hospital. 14. All parties entered into a Stipulation of Discontinuance with prejudice as to Northwell Health, Inc. on May 18, 2022. Such stipulation was filed with the Court. Annexed hereto as “Exhibit I”. 15. Plaintiff filed a Note of Issue and Certificate of Readiness on August 15, 2022. Annexed hereto as “Exhibit J”. As such, the within motion is timely. 3 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 16. Thereafter, co-defendant Dr. Sayeed moved for summary judgment; the motion is pending at the time of submission of this motion. Annexed hereto as “Exhibit M.” Without commenting upon the sufficiency of the moving papers of Dr. Sayeed or the affirmation in opposition by plaintiff’s counsel, it is respectfully submitted that should this Court grant summary judgment to Dr. Sayeed, summary judgment is likewise warranted as to North Shore University Hospital as the alleged acts of negligence are based on the independent care of Dr. Sayeed, not the staff of North Shore University Hospital. STATEMENT OF MATERIAL FACTS 17. The facts underlying the within motion are set forth in the attached Statement of Material Facts which is submitted pursuant to Uniform Rule 202.8-g and is hereby incorporated by reference into this Affirmation. SUMMARY JUDGMENT STANDARD 18. “The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury.” Khosrova v. Westermann, 109 A.D.3d 965 (2nd Dept. 2013) (citations omitted). 19. For a medical provider to prevail on a motion for summary judgment, the defendant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact”. Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (citations omitted). To meet this burden, a defendant must submit sufficient evidence to negate either of the two elements of a medical malpractice cause of action. See Bucsko v. Gordon, 118 A.D.3d 653 (2nd Dept. 2014). The evidence may consist of deposition testimony, medical and hospital records and an expert’s affirmation. See Sheenan Conrades v. Winifred Masterson Burke Rehab. Hosp., 51 A.D.3d 769 (2nd Dept. 2008); Rebozo 4 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 v. Wilen, 41 A.D.3d 457 (2nd Dept. 2007); DiMitri v. Monsouri, 302 A.D.2d 420 (2nd Dept. 2003). 20. “The burden then shift[s] to the plaintiff to lay bare her proof and to demonstrate the existence of a triable issue of fact”. Geffner v. North Shore University Hospital, 57 A.D.3d 839 (2nd Dept. 2008) (citations omitted); see also Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 (1986) (“the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require trial of the action”) citing Zuckerman v City of New York, 49 N.Y.2d 557 (1980). 21. An expert’s affirmation in opposition is required of plaintiff, however, will fail as a matter of law if the opinions offered are nothing more than conclusory, speculative, or fail to refute the specific assertions made by the experts of the moving party, including the issue of proximate cause. See Hernandez v. Nwaishienyi, 48 N.Y.S.3d 467, 469-470 (2nd Dept. 2017) (“The affirmation of the plaintiff's expert, * * * was conclusory and speculative and failed to address specific assertions made by [defendants’ experts], including those regarding proximate cause”); Sukhraj v. N.Y. City Health & Hosps. Corp., 106 A.D.3d 809 (2nd Dept. 2013) (summary judgment granted where “the plaintiffs' expert did not address important elements set forth by the defendant's expert regarding causation”); DiMitri v. Monsouri, 302 A.D.2d 420 (2nd Dept. 2003) (“The plaintiff's expert also failed to address the contentions of Dr. Levinsohn's expert regarding the cause of the plaintiff's injury. Accordingly, the affirmation was insufficient to raise a triable issue of fact”); Rebozo v. Wilen, 41 A.D.3d 457 (2nd Dept. 2007) (the plaintiff’s expert must establish how the plaintiff’s injuries would have been less severe with an earlier diagnosis). 22. Summary judgment cannot be denied simply if a plaintiff’s expert disagrees with the defendant's expert, as competing experts almost always disagree; the question is whether the 5 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 claim of plaintiff’s expert is sufficiently supported by the records to raise an issue for the trier of fact. See DeJesus v. Mishra, 93 A.D.3d 135 (1st Dept. 2012). A shadowy semblance of an issue is not enough to defeat the motion. See SJ Capelin Associates, Inc. v. Globe Manufacturing, 36 N.Y.2d 338 (1974). 23. Moreover, a “hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee and may not be held concurrently liable unless its employees committed independent acts of negligence or the attending physician's orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the same”. Toth v. Bloshinsky, 39 A.D.3d 848, 850 (2nd Dept. 2007) (citations omitted). See Gattling v. Sisters of Charity Med. Ctr., 150 A.D.3d 701 (2nd Dept. 2017) (“A hospital may not be held liable for injuries sustained by a patient who is under the care of a private attending physician chosen by the patient where the resident physicians and nurses employed by the hospital merely carry out the orders of the private attending physician”); Tomeo v. Beccia, 127 A.D.3d 1071, 1073 (2nd Dept. 2015) (summary judgment granted to the hospital as the Court held that the private attending physician’s orders were not “contraindicated by normal practice, such that ordinary prudence required inquiry into the correctness of those orders.”). 24. Stated otherwise, a hospital and its staff will be insulated from liability absent evidence that they exercised any independent medical judgment apart from the private physician. See Buchheim v. Sanghavi, 299 A.D.2d 229, 230 (1st Dept. 2002); Crawford v. Sorkin, 41 A.D.3d 278, 280 (1st Dept. 2007). 25. “Nor is affiliation of a doctor with a hospital or other medical facility, not amounting to employment, alone sufficient to impute the doctor's negligent conduct to the hospital or facility”. Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79 (1986) citing Ruane v. Niagara Falls Mem'l 6 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 Med. Ctr., 60 N.Y.2d 908, 909 (1983) (“The fact that the doctor also happened to be affiliated with the hospital, but not employed by the hospital, is not alone sufficient to impute the doctor's conduct following the implantation of the devices to the hospital.”). 26. The Court in Spiegel v. Beth Israel Med. Ctr.-Kings Highway Div., held that the plaintiffs failed to raise a triable issue of fact as to whether the hospital's staff committed independent acts of malpractice and as to whether any order given by [the private attending] was so contraindicated that it should not have been followed by the hospital's staff”. 149 A.D.3d 1127 (2nd Dept. 2017). 27. Likewise, summary judgment on behalf of Lenox Hill Hospital was deemed appropriate as it was not vicariously liable for the acts of the private co-defendant physician in the matter of Pratt v. Haber, 105 A.D.3d 429 (1st Dept. 2013). Defendants made prima facie showing that defendant Gregory Haber, M.D., was not an employee or agent of Lenox Hill and that Lenox Hill was therefore not liable for Dr. Haber's alleged malpractice (citations omitted). SUMMARY JUDGMENT MUST BE GRANTED TO NORTH SHORE UNIVERSITY HOSPITAL AS PLAINTIFF CANNOT ESTABLISH A PRIMA FACIE SHOWING OF ENTITLEMENT TO JUDGMENT AS A MATTER OF LAW 28. Based upon a review of the medical records, the testimony elicited at examinations before trial, and the affirmations of expert emergency medicine specialist Robert Meyer, MD and radiologist Kevin Mennitt, MD, it is clear that the care rendered by the staff of North Shore University Hospital was within the good and accepted standards of medical practice. 29. Emergency Medicine expert Robert Meyer, MD states the following with a reasonable degree of medical certainty: 7 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 Summary of Pertinent Facts Plaintiff, then 48-years-old, arrived at the Emergency Department of North Shore University Hospital via ambulance on July 21, 2017, with a chief complaint of a right-hand laceration. Upon arrival, plaintiff was timely triaged. Chief complaint was a laceration to the right hand by glass. Treatment prior to arrival consisted of bleeding control. Vitals were stable as follows: BP 164/84, heart rate 95, respiration rate 13, and O2sat 99% on room air. The ED RN then timely evaluated plaintiff. As per the record, plaintiff reported that about half an hour prior, he was swinging his arms in his home and hit a picture frame on the wall. EMS arrived at plaintiff’s home and brought plaintiff into the ED. Plaintiff reported positive sensation to all fingers and further reported pain on movement to the left fourth and fifth fingers. Plaintiff was alert and oriented x4. The ED providers were appropriately notified. Eun Ryang Jang, NP evaluated and noted plaintiff complained of right dominant hand lacerations status post hitting a glass frame which then burst into many pieces. Plaintiff otherwise denied other injuries or sensory changes to his fingers. Following a thorough physical examination, NP Jang noted “multiple right-hand lacerations to the 2nd, 3rd and 4th phalanx, PIP dorsum superficial lacerations, + 4th phalanx, MCP medial aspect 2.5 cm laceration with extensor tendon laceration, diminished extension, 5th phalanx MCP, medial aspect 2cm laceration with full ROMs. No visualized FB [foreign body].” ED attending Phillip Underwood, MD likewise evaluated and then noted plaintiff was complaining of pain over the dorsum of the right hand but denied any numbness or paresthesia. Based upon his examination, Dr. Underwood documented there was extensor lag of the fourth finger and that plaintiff was unable to actively extend his finger. Dr. Underwood appreciated that there were no obvious foreign bodies, and the tendon was not exposed. Thereafter, NP Jang properly ordered administration of a tetanus shot, IV Ancef and stat x-ray of the right hand to rule out foreign bodies. A plastic surgery consult was timely called. Urgent imaging of the right hand was performed and interpreted by the radiologist as follows: “No radiopaque foreign body is visualized. There is no acute fracture or dislocation of the right hand. Mild first CMC joint arthrosis is noted.” (emphasis added). Co-defendant plastic surgeon Syed Sayeed, MD consulted shortly thereafter. 8 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 Dr. Sayeed obtained an independent history regarding the mechanism of injury and performed his own examination. The record reflects that Dr. Sayeed assessed multiple lacerations to the right hand over the small finger at the level of the MCP joint, over the PIP joint of the ring finger as well as the base of the ring finger on the radial side extending onto the dorsum of the hand. A wound was also present over the PIP joint of the middle finger and there was a wound over the PIP joint to the index finger. Plaintiff was unable to extend at the MCP joint on the right ring finger as well as was unable to extend at the PIP joint. Notably, Dr. Sayeed testified that he did not observe or palpate any foreign bodies during his evaluation. In addition, Dr. Sayeed personally reviewed the imaging of the plaintiff’s hand and as per his testimony there was no visible foreign bodies. Importantly, during the consultation, plaintiff informed Dr. Sayeed that he personally knew hand surgeon and plastic surgeon, Burt Greenberg, M.D. Dr. Sayeed testified that he informed plaintiff that the skin could be closed, and plaintiff could be managed as an outpatient by Dr. Greenberg, or if plaintiff chose, Dr. Sayeed could perform the procedure in the Emergency Room. Together, plaintiff and Dr. Sayeed called Dr. Greenberg who advised that Dr. Sayeed could perform the repair surgery in his place. Dr. Sayeed explained to plaintiff that the injuries could be safely repaired in the ED, rather than going to the operating room, to which plaintiff agreed to undergo the procedure, as performed by Dr. Sayeed. Risks, benefits and alternatives of local exploration were reviewed with plaintiff by Dr. Sayeed. Accordingly, under the exclusive care of Dr. Sayeed, plaintiff underwent exploration of the penetrating wounds, repair of extensor tendon and lateral bands of the right ring finger metacarpal joint, repair of metacarpophalangeal joint capsule of the right ring finger, repair of extensor tendon at proximal interphalangeal joint right index finger, debridement of skin and subcutaneous tissue of the right hand, simple repairs measuring 7 cm on the right dorsal hand and application of a short arm splint. Dr. Sayeed’s exploration findings included injury to the extensor tendon at the proximal interphalangeal joint on the index finger as well as injuries to the extensor tendon and lateral band mechanism on the base of the right ring finger overlying the metacarpal phalangeal joint and injury to the joint capsule. Plaintiff was then discharged home. Upon discharge, plaintiff was instructed to elevate his hand, continue use of the splint, to take Motrin 600 mg every eight (8) hours for pain and Keflex 500 mg every six (6) hours for seven (7) days. Plaintiff was to follow up with Dr. Sayeed as an out-patient. Plaintiff was further instructed to follow up with his primary care provider 24-48 hours after discharge and to seek immediate medical care for any new or worsening signs or symptoms. 9 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 The Staff of North Shore University Hospital Acted Within Good and Accepted Medical Practice and Did Not Cause or Contribute to the Plaintiff’s Injuries It is my opinion, to a reasonable degree of medical certainty that all care and treatment rendered to plaintiff during his July 21, 2017, presentation to the NSUH ED was appropriate and was at all times in accordance with good and accepted medical practice, and that no act or omission by the staff of North Shore University Hospital caused or contributed to any of the injuries asserted by the plaintiff herein. The staff elicited a detailed history as to the mechanism of injury and same is properly documented in the chart as having been caused by shattered glass. Thereafter, physical examination of the wound to assess the scope of injury was properly undertaken by the NP and the ED attending. Ancef and a tetanus vaccine were then properly ordered to counter the possibility of infection and/or secondary injury. X-rays of the hand were likewise ordered to primarily assess for stability of the hand. Lastly, the staff of NSUH properly ordered a consultation by plastic surgery who would be responsible for directing management and repair of the wounds. Accordingly, co-defendant plastic surgeon Syed Sayeed, MD consulted. Plaintiff explained to Dr. Sayeed that he had a treating plastic surgeon, Burt Greenberg, MD and after speaking with Dr. Greenberg, the plaintiff chose to receive care from Dr. Sayeed. Of note, Dr. Sayeed testified that he was not an employee of North Shore University Hospital but rather a private attending. As the consulting specialist, Dr. Sayeed obtained his own history, reviewed the x- ray images, performed an examination, and after explaining the treatment options, undertook exploration and repair of the plaintiff’s hand. Without commenting upon the appropriateness of the actions undertaken by Dr. Sayeed, the acts or omissions of Dr. Sayeed were his alone and the staff properly relied upon his directives as a specialist. Whether additional imaging should have been ordered was in the sole discretion of Dr. Sayeed. Moreover, which procedures would be undertaken, where the procedures would be performed, when the procedures would be performed, explaining of the procedures, and obtaining informed consent for same, and the execution of such procedures were under the full autonomy of Dr. Sayeed. Likewise, all instructions for post-discharge care were properly directed by Dr. Sayeed. Accordingly, the staff of NSUH timely and properly obtained the pertinent history, performed physical examinations, ordered appropriate medications and diagnostic testing, and properly relied upon the directives of the consulting plastic surgeon Dr. Sayeed. 10 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 30. Radiology expert Kevin Mennitt, MD states the following with a reasonable degree of medical certainty: All Care And Treatment Rendered In Regard to Radiologic Imaging At North Shore University Hospital Was At All Times In Accordance With Good And Accepted Radiologic Practice And Did Not Cause Or Contribute To The Plaintiff’s Injuries It is my opinion, to a reasonable degree of medical certainty that all imaging concerning plaintiff’s right hand performed on July 21, 2017, was performed, and interpreted in accordance with good and accepted medical and radiologic practice, and that no act or omission by the staff or Radiology Department of North Shore University Hospital caused or contributed to any of the injuries asserted by the plaintiff herein. More specifically, I have personally reviewed the July 21, 2017, x-rays and also conclude that there is no radiopaque foreign body visualized. Quite significantly, glass that does not contain lead cannot be seen on plain x-rays. Furthermore, the July 21, 2017, imaging was standard and typical of an x-ray that would be performed in an ED following a patient’s recent trauma, as they are often unable to fully open their hand and bend their fingers. It is not the standard of care to perform dedicated images of each finger for a patient with this type of presentation in an ED setting. Moreover, it is not the standard of care for a radiologist to recommend further imaging in this instance, as this determination is decided by the consulting plastic surgeon and/or hand surgeon. 31. The overwhelming evidence illustrated by the depositions, the affirmations of board-certified emergency medicine specialist Robert Meyer, MD and radiologist Kevin Mennitt, MD, and the applicable medical records, conclusively supports that North Shore University Hospital is entitled to summary judgment as a matter of law. THE PLAINTIFF’S CLAIM OF LACK OF INFORMED CONSENT MUST BE DISMISSED 32. To establish a cause of action to recover damages based on lack of informed consent, plaintiff must prove: “(1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associates with the treatment, and the alternatives, that a reasonable medical practitioner would 11 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.” Alessi v. Mucciolo, 156 A.D.3d 750, 750, 67 N.Y.S.3d 270, 271 (2d Dep’t 2017), citing Spano v. Bertocci, 299 A.D.2d 335, 337–38, 749 N.Y.S.2d 275, 278 (2d Dep’t 2002). 33. The expert affirmation of Robert Meyer, MD establishes that the consulting specialist is responsible for determining which procedures would be undertaken, when the procedures will be performed, explaining the procedures, and obtaining informed consent for same. 34. Dr. Sayeed’s consultation note of July 21, 2017 reflects that he had a discussion with plaintiff concerning his injuries and the need for repair. Dr. Sayeed documented that plaintiff agreed to the procedure after the risks, benefits and alternatives were explained. Likewise, Dr. Sayeed’s operative report reflects that the “need for exploration was discussed with the patient. He agreed to the procedure.” Lastly, both Dr. Sayeed and plaintiff executed the consent form. 35. Moreover, Dr. Sayeed testified that per his routine custom and practice, he described to the patient the injuries he had sustained to his right hand. Per the testimony, Dr. Sayeed advised plaintiff that he had an extensor tendon injury and the skin could be closed and this could be managed as an outpatient by Dr. Greenberg, or Dr. Sayeed could safely repair it in the ED. Dr. Sayeed testified that plaintiff asked him to call Dr. Greenberg on his cell phone, which they did, and it was decided that Dr. Sayeed would undertake the responsibility. Exhibit G, page 10-11. Dr. Sayeed proceeded to discuss with the plaintiff what the procedure would entail and based on their discussion the plaintiff agreed to proceed. Dr. Sayeed further testified that it is his custom and practice that when a patient presents with the extensive injuries that plaintiff had, he 12 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 advises that there remains a possibility of residual stiffness and a need for occupational therapy. Exhibit G, page 11, 28. 36. Lastly, Dr. Sayeed’s own motion for summary judgment corroborates that it was Dr. Sayeed who was charged with obtaining informed consent, not the staff of the hospital. Exhibit M. 37. Accordingly, plaintiff’s claim for failure to obtain informed consent must be dismissed as against North Shore University Hospital. CONCLUSION 38. Accordingly, it is conclusively established that defendant North Shore University Hospital acted within the good and accepted standards of medical practice and did not proximately cause injury to the plaintiff. The overwhelming evidence illustrated by the party depositions, the affirmations of Robert Meyer, MD and Kevin Mennitt, MD, and the applicable medical records, conclusively supports that defendant North Shore University Hospital is entitled to judgment as a matter of law. For this reason, summary judgment should be granted dismissing the matter in its entirety as to defendant North Shore University Hospital. WHEREFORE, it is respectfully requested that this Court grant the motion for summary judgment dismissing the Complaint in its entirety as to NORTH SHORE UNIVERSITY HOSPITAL, and for such other, further, and different relief as this Court deems just and proper. Dated: October 12, 2022 Garden City, New York ___________________________ Kerrianne Russo, Esq. 13 of 14 FILED: NASSAU COUNTY CLERK 10/12/2022 03:55 PM INDEX NO. 611506/2018 NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 10/12/2022 CERTIFICATION Pursuant to the Uniform Rules for the Supreme Court Rule 202.8-b, this shall certify that by the undersigned attorney filing the annexed Affirmation in Support, that the word count for this affirmation is 4,1,4,2 words and compiles with the court count identified in Supreme Court Rule 202.8-b. In determining the word count identified, the undersign is relying upon the word-process system (Microsoft Word) used to prepare this document. Dated: October 12, 2022 Garden City, New York _______________________________ Kerrianne Russo 14 of 14