Gershberg v. Wood-Smith , 719 N.Y.S.2d 846 ( 2001 )

Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered January 4, 2000, which, inter alia, granted defendant’s motion for a directed verdict, unanimously affirmed, without costs. Appeal from judgment, same court and Justice, entered June 22, 1999, upon a jury verdict, in defendant’s favor, unanimously dismissed, without costs, as superseded by the appeal from the order of January 4, 2000 granting defendant’s motion for a directed verdict.

In this medical malpractice action predicated upon lack of informed consent, plaintiffs expert, a neurologist, testified that it was a departure from good medical practice for a doctor, in obtaining a patient’s consent to a procedure, not to inform the patient of a risk known by the doctor to be entailed by the procedure, including, as was relevant in the case at bar, the possibility of facial nerve damage. The same expert, however, subsequently admitted that it was not within his expertise to comment on the potential risks of a surgical procedure such as the one to which plaintiff purportedly consented. In these circumstances, the motion court correctly determined that plaintiff had failed to meet her burden to adduce expert testimony demonstrating the qualitative insufficiency of plaintiffs consent (see, CPLR 4401-a) and, upon such determination, properly granted defendant’s motion for a directed verdict (id.; cf., Davis v Caldwell, 54 NY2d 176). Concur— Sullivan, P. J., Andrias, Wallach, Saxe and Friedman, JJ.