Summary
holding that "a conflict of medical opinion . . . should be resolved by a finder of fact"
Summary of this case from McCaffrey v. PuckettOpinion
February 16, 1993
Appeal from the Supreme Court, Nassau County (Christ, J.).
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the respondent's motion is denied.
The respondent's medical expert's bare conclusory assertions that (1) the respondent conformed to accepted medical practices, (2) the cause of the plaintiff's decedent's death could not have been reasonably diagnosed, and (3) even if the cause of death could be diagnosed it could not have been successfully treated, were insufficient to establish the respondent's entitlement to judgment as a matter of law (see, Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851; Canosa v Abadir, 165 A.D.2d 823; Montalbano v North Shore Univ. Hosp., 154 A.D.2d 579). Additionally, the respondent's medical expert's conclusions were completely contradicted by the plaintiff's medical expert, leaving a conflict of medical opinion that should be resolved by a finder of fact (see, Taype v City of New York, 82 A.D.2d 648; Kallenberg v Beth Israel Hosp., 45 A.D.2d 177, affd 37 N.Y.2d 719). Moreover, since the deposition of the respondent had not yet taken place, summary judgment was premature. Mangano, P.J., Sullivan, O'Brien, Ritter and Pizzuto, JJ., concur.