Majority
p. 33Celesta Moricky et al., Appellants, v Beth Israel Medical Center et al., Respondents. [604 NYS2d 721]
—Order, Supreme Court, New York County (Ira Gammerman, J.), entered on or about September 23, 1992, which granted the motion of defendants Manhattan Medical Group, P.C., and Zeki Uygur, M.D., to dismiss the third cause of action for battery on the ground that it fails to state a cause of action, unanimously affirmed, without costs.
The allegation that the physician performed the laminectomy at a level of the thoracic spine different from that consented to by the patient sets forth a cause of action for medical malpractice, not one for battery. Concur — Sullivan, J. P., Rosenberger, Ellerin and Wallach, JJ.