| Cruz v St. Barnabas Hosp. |
| 2008 NY Slip Op 03115 [50 AD3d 382] |
| April 10, 2008 |
| Appellate Division, First Department |
| John Cruz, as Executor of Milagros Carrero, Deceased,Respondent, v St. Barnabas Hospital, Defendant and Third-PartyPlaintiff-Respondent-Appellant. Christopher Leong, M.D., Third-PartyDefendant-Appellant-Respondent. |
—[*1] Garbarini & Scher, P.C., New York (William D. Buckley of counsel), forrespondent-appellant. Pollack, Pollack, Isaac & DeCicco, New York (Jillian Rosen of counsel), forrespondent.
Order, Supreme Court, Bronx County (Yvonne Gonzalez, J.), entered March 24, 2006,which, in this medical malpractice action, denied the hospital's motion for summary judgmentdismissing the complaint and Dr. Leong's cross motion for summary judgment dismissing thethird-party complaint, unanimously affirmed, without costs.
In view of the experts' conflicting opinions, it cannot be concluded as a matter of law that thedelay in diagnosis and treatment of the decedent's breast cancer did not diminish her chance ofsurvival or hasten her death (see Schaubv Cooper, 34 AD3d 268 [2006]). Issues of fact also exist as to Dr. Leong's treatment ofthe decedent arising from the opinion of the hospital's expert that Dr. Leong should haveexamined the decedent's breasts and evidence that by doing so he could have discovered thecancer and pursued a more aggressive plan of treatment (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357, 358 [2006]).[*2]
We have considered the parties' remaining arguments foraffirmative relief and find them unavailing. Concur—Mazzarelli, J.P., Andrias, Gonzalezand Acosta, JJ.