| Howard v Kennedy |
| 2009 NY Slip Op 02326 [60 AD3d 905] |
| March 24, 2009 |
| Appellate Division, Second Department |
| Fred Howard et al., Respondents, v Karen Kennedy et al.,Appellants, et al., Defendant. |
—[*1] Joseph Lichtenstein, Mineola, N.Y. (Elliot L. Lewis of counsel), for respondents.
In an action, inter alia, to recover damages for medical malpractice, (1) the defendantHorizon Family Medical Group appeals from an order of the Supreme Court, Orange County(McGuirk, J.), dated October 26, 2007, which denied its motion for summary judgmentdismissing the complaint insofar as asserted against it, and (2) the defendants Horizon FamilyMedical Group and Karen Kennedy appeal from an order of the same court also dated October26, 2007, which denied their separate motion for summary judgment dismissing the complaintinsofar as asserted against them.
Ordered that the orders are affirmed, with one bill of costs.
The appellants made prima facie showings of entitlement to judgment as a matter of law bysubmitting the affidavit of an expert who opined, inter alia, that the appellants did not deviatefrom accepted standards of care in their treatment of the decedent, and that, in any event, anyalleged deviation was not the proximate cause of the plaintiffs' damages. However, in opposition,the affidavit of the plaintiffs' expert raised a triable issue of fact (see Etminan v Sasson,51 AD3d 623 [2008]; see also Shields v Baktidy, 11 AD3d 671, 672 [2004])."Summary judgment may not be awarded in a medical malpractice action where the partiesadduce conflicting opinions of medical experts" (Shields v Baktidy, 11 AD3d at 672).Accordingly, the Supreme Court correctly denied the appellants' motions for summary judgmentdismissing the complaint insofar as asserted against them.[*2]
Contrary to the appellants' contention, the Supreme Courtdid not err in considering the affidavit of the plaintiffs' expert, despite the plaintiffs' allegedfailure to comply with CPLR 3101 (d) (1). The Supreme Court noted that there was a "factualdispute" as to whether the plaintiffs had in fact complied, and its decision to consider theaffidavit solely for purposes of summary judgment was a provident exercise of discretion(see Simpson v Tenore & Guglielmo, 287 AD2d 613 [2001]; cf. Construction bySingletree, Inc. v Lowe, 55 AD3d 861 [2008]).
The appellants' remaining contentions either are not properly before this Court, or arewithout merit. Rivera, J.P., Ritter, Miller and Belen, JJ., concur.