Opinion
September 8, 1997
Appeal from the Supreme Court, Queens County (Polizzi, J.).
Ordered that the appeal from the order dated May 1, 1996, is dismissed, as that order was superseded by the order dated October 11, 1996, made upon renewal and reargument; and it is further,
Ordered that the order dated October 11, 1996, is affirmed insofar as appealed from; and it is further,
Ordered that the respondent is awarded one bill of costs.
The defendants have failed to establish as a matter of law that a reasonably prudent person in the plaintiff's position would not have declined to undergo the procedure in question here if he or she had been fully informed ( see, Public Health Law § 2805-d), or that the defendants' negligence did not create the condition complained of. Thus, the defendants are not entitled to summary judgment regardless of the adequacy of the plaintiff's opposing papers ( see, Winegrad v. New York Univ. Ctr., 64 N.Y.2d 851; Porter v. Huntington Hosp., 148 A.D.2d 510, 511).
Miller, J.P., Pizzuto, Joy and Krausman, JJ., concur.