Smalls v Mercy Med. Ctr.

2008 NY Slip Op 02991 [50 AD3d 670]

April 1, 2008

Appellate Division, Second Department

As corrected through Wednesday, June 18, 2008

Margaret Smalls, Respondent, v Mercy Medical Center,Appellant.

—[*1]Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J.Guardaro, Jr., and Patricia D'Alvia of counsel), for appellant.

Joshua A. Schulman, P.C., New York, N.Y. (Stephen D. Chakwin, Jr., of counsel), forrespondent.

In an action to recover damages for medical malpractice, the defendant appeals from an orderof the Supreme Court, Nassau County (Winslow, J.), entered August 8, 2006, which denied itsmotion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court properly denied its motion forsummary judgment dismissing the complaint. The plaintiff seeks to recover damages against thedefendant based upon a theory of res ipsa loquitur. In support of its motion, the defendant failedto make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad vNew York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Porter v Milhorat, 303 AD2d736 [2003]). A triable issue of fact exists, inter alia, as to whether the injury at issue was "causedby an agency or instrumentality within the exclusive control of the defendant" (Kambat v St.Francis Hosp., 89 NY2d 489, 494 [1997]). The defendant's failure to make such a primafacie showing requires denial of the motion, regardless of the sufficiency of the plaintiff'sopposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Rivera,J.P., Lifson, Angiolillo and Balkin, JJ., concur.