        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

254
CA 15-00328
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


KENNETH P. GOLDEN, PLAINTIFF-APPELLANT,
ET AL., PLAINTIFF,

                    V                             MEMORANDUM AND ORDER

SASHA PAVLOV-SHAPIRO, M.D., ASSOCIATED
MEDICAL PROFESSIONALS OF NY, PLLC, JEFFREY M.
DESIMONE, M.D., CENTRAL NEW YORK SURGICAL
PHYSICIANS, PC, AND UPSTATE UNIVERSITY HOSPITAL
AT COMMUNITY GENERAL, DEFENDANTS-RESPONDENTS.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR PLAINTIFF-APPELLANT.

FAGER AMSLER & KELLER, LLP, SYRACUSE (JOHN P. POWERS OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County
(Donald F. Cerio, Jr., A.J.), entered October 20, 2014. The order
granted the motion of defendants for summary judgment dismissing the
complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Kenneth Golden (plaintiff) and his wife commenced
this medical malpractice action seeking damages for injuries sustained
by plaintiff during a laparoscopic-assisted sigmoid colectomy,
resulting in the need for postoperative surgery to repair the damage
to his ureter that allegedly occurred during the initial surgery.
Supreme Court properly granted defendants’ motion for summary judgment
dismissing the complaint. Defendants met their initial burden with
respect to the cause of action for malpractice, and contrary to
plaintiff’s contention, he failed to raise an issue of fact through
his expert’s affidavit. It is well settled that, where an expert’s
“ ‘ultimate assertions are speculative or unsupported by any
evidentiary foundation, . . . [his or her] opinion should be given no
probative force and is insufficient to withstand’ ” a motion for
summary judgment (Bagley v Rochester Gen. Hosp., 124 AD3d 1272, 1273).
Here, plaintiff’s expert acknowledged that the methylene dye test
showed no injury to the bladder or ureter, and thus his conclusion
that the injury occurred during the initial surgery is based solely on
speculation. Similarly, plaintiff’s expert opined that defendants
deviated from the standard of care without detailing what procedures
                                 -2-                           254
                                                         CA 15-00328

or actions should have been undertaken and whether those procedures or
actions were required under the applicable standard of care (see
generally id.). Plaintiff’s contention with respect to the
applicability of the doctrine of res ipsa loquitur is not properly
before us because it is raised for the first time on appeal (see
Ciesinski v Town of Aurora, 202 AD2d 984, 985). Finally, we reject
plaintiff’s contention that defendants failed to meet their initial
burden on the motion with respect to the issue of informed consent
(see Gray v Williams, 108 AD3d 1085, 1086), and we likewise reject
plaintiff’s alternative contention that he raised an issue of fact to
defeat the motion with respect to that issue (cf. Laribee v City of
Rome [appeal No. 1], 254 AD2d 805, 805).




Entered:   April 29, 2016                       Frances E. Cafarell
                                                Clerk of the Court
