
    Jacqueline Kasenetz, Appellant, v Henrietta E. C. Vieta, as Executrix of John Vieta, Deceased, Respondent.
   Judgment, Supreme Court, New York County (Bruce McM. Wright, J.), rendered January 14, 1991, upon a jury verdict in favor of defendant dismissing the complaint, unanimously affirmed, without costs.

Plaintiff, a diabetic since the age of 10, brought this action against the executrix of Dr. John Vieta’s estate, to recover for personal injuries arising from a 1984 gall bladder surgery performed by Dr. John Vieta. Plaintiff, who was 37 years old at the time of the surgery, claimed that Dr. Vieta had failed to adequately inform the patient of the attendant risks of the surgery, or of the alternatives to surgery.

We find no error with respect to the trial court’s charge on defenses available to defendant pursuant to Public Health Law § 2805-d (4), as the charge read as a whole, conveyed the appropriate burden of proof. Similarly, the court’s charge that a right of action for lack of informed consent is limited to non-emergency treatment was proper. (Public Health Law § 2805-d [2].) Moreover, any error due to the lack of explicit testimony that plaintiff’s surgery was emergency related could not have prejudiced plaintiff, since the jury never reached this issue. Nor do any of the other claimed errors, in the court’s instruction warrant reversal. Concur—Sullivan, J. P., Wallach, Asch and Smith, JJ.  