| Bickom v Bierwagen |
| 2008 NY Slip Op 01212 [48 AD3d 1247] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Cory B. Bickom, Appellant, v David M. Bierwagen, PT,Individually and as an Agent, Officer and/or Employee of Orthopedic Rehabilitation Services,PT, PC, et al., Respondents. |
—[*1] Thorn Gershon Tymann and Bonanni, LLP, Albany (Gregory J. Rodriguez of counsel), fordefendants-respondents.
Appeal from an order and judgment (one paper) of the Supreme Court, Onondaga County(Edward D. Carni, J.), entered October 2, 2006 in a medical malpractice action. The order andjudgment granted defendants' motion for summary judgment dismissing the complaint.
It is hereby ordered that the order and judgment so appealed from is unanimously reversed onthe law with costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries he allegedlysustained as the result of a deep tissue massage performed by defendant Janet Murphy, PT, alicensed physical therapist, during a physical therapy session. Supreme Court erred in grantingdefendants' motion seeking summary judgment dismissing the complaint. Defendants met theirinitial burden by submitting evidence that Murphy did not deviate from accepted standards ofcare in her treatment of plaintiff and that, in any event, the deep tissue massage did not causeplaintiff's injuries (see generally Couse v La Torre Orthopedic Lab., 221 AD2d 709, 710[1995]). Plaintiff, however, raised triable issues of fact with respect to Murphy's allegeddeparture from the standard of care and the proximate cause of plaintiff's injuries by submittingthe affidavit of his expert, a physician specializing in physical medicine and rehabilitation(see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Contrary tothe court's determination, we conclude that, although plaintiff's expert is not a licensed physicaltherapist, he is nevertheless "possessed of the requisite skill, training, education, knowledge orexperience from which it can be assumed that [his] opinion rendered [on the issues of negligenceand proximate cause] is reliable" (Matter of Enu v Sobol, 171 AD2d 302, 304 [1991];cf. Kirker v Nicolla, 256 AD2d 865, 866-867 [1998]; see generally Robertson vGreenstein, 308 AD2d 381, 382 [2003], lv dismissed 2 NY3d 759 [2004]; Farkasv Saary, 191 AD2d 178, 180-181 [1993]). Present—Scudder, P.J., Martoche, Smith,Green and Gorski, JJ.