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

323
CA 15-00858
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND NEMOYER, JJ.


MARY ELLEN MESI AND JOSEPH G. MESI, JR.,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MOHAMED Y. ZEID, M.D., ET AL., DEFENDANTS,
VIVIAN L. LINDFIELD, M.D., INDIVIDUALLY AND
AS AN AGENT, OFFICER AND/OR EMPLOYEE OF
WESTERN NEW YORK BREAST HEALTH, AND WESTERN
NEW YORK BREAST HEALTH, BY AND THROUGH ITS
AGENTS, OFFICERS AND/OR EMPLOYEES,
DEFENDANTS-APPELLANTS.


CONNORS & VILARDO, LLP, BUFFALO (MICHAEL J. ROACH OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

DEMORE LAW FIRM, PLLC, SYRACUSE (TIMOTHY J. DEMORE OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (John M.
Curran, J.), entered February 20, 2015. The order denied the motion
of defendants Vivian L. Lindfield, M.D. and Western New York Breast
Health for summary judgment.

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

     Memorandum: Mary Ellen Mesi (plaintiff) and her husband
commenced this medical malpractice action alleging, inter alia, that
Vivian L. Lindfield, M.D. (defendant) and her medical practice
(collectively, defendants) were negligent in their care and treatment
of plaintiff after she was diagnosed with a phyllodes tumor in her
right breast. As amplified by the bill of particulars, plaintiffs
allege in pertinent part that defendant was negligent in failing to
order a second biopsy of the tumor to confirm that it was malignant,
and in failing to advise plaintiff that the double mastectomy she
later underwent was medically unnecessary to treat the tumor.
Following discovery, defendants moved for summary judgment dismissing
the complaint. Supreme Court denied the motion, concluding that,
although defendants met their prima facie burden, plaintiffs raised
issues of fact precluding summary judgment. We affirm.

     Contrary to defendants’ contention, plaintiff’s affidavit does
not directly contradict the five-page excerpt of her deposition
                                 -2-                           323
                                                         CA 15-00858

submitted by defendants, and thus its submission “is not merely an
attempt to raise a feigned issue of fact” to defeat summary judgment
(Schwartz v Vukson, 67 AD3d 1398, 1400; see Indarjali v Indarjali, 132
AD3d 1277, 1277). We further conclude that plaintiff’s affidavit,
combined with that of her expert, raised triable issues of fact
whether defendant failed to comply with the applicable standard of
care in advising plaintiff with respect to the double mastectomy
defendant performed, and whether defendant’s alleged failure to comply
with the standard of care caused plaintiff to undergo that procedure
(see Gray v Williams, 108 AD3d 1085, 1086-1087; cf. Orphan v Pilnik,
15 NY3d 907, 908-909).




Entered:   May 6, 2016                         Frances E. Cafarell
                                               Clerk of the Court
