Adjeteyv.N.Y.C. Health Hosp. Corp.

Appellate Term of the Supreme Court of New York, Second DepartmentJun 16, 2009
2008-01700 (N.Y. Misc. 2009)
2008-017002009 N.Y. Slip Op. 5073

2008-01700.

Decided June 16, 2009.

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Levine, J.), dated January 25, 2008, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Pamela Seider Dolgow and Elizabeth S. Natrella of counsel), for appellants.

Kramer Pollack, Mineola, N.Y. (Larry J. Kramer of counsel), for respondent.

STEVEN W. FISHER, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, L. PRISCILLA HALL, JJ.


DECISION ORDER

The defendants established their prima facie entitlement to judgment as a matter of law by submitting expert affidavits which demonstrated that they did not depart from good and accepted medical practice in their treatment of the plaintiff, and that, in any event, their treatment was not a proximate cause of the plaintiff's injuries ( see Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, however, the plaintiff submitted affirmations of two experts which were sufficient to raise triable issues of fact as to whether the defendants departed from good and accepted medical practice and whether such departures were a proximate cause of the plaintiff's injuries ( see Boutin v Bay Shore Family Health Ctr. , 59 AD3d 368 ; Roca v Perel , 51 AD3d 757, 759). Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts ( see Shields v Baktidy , 11 AD3d 671 , 672; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624). Accordingly, the defendants' motion for summary judgment dismissing the complaint was properly denied.

FISHER, J.P., DICKERSON, ENG and HALL, JJ., concur.