| Larsen v Banwar |
| 2010 NY Slip Op 01114 [70 AD3d 1337] |
| February 11, 2010 |
| Appellate Division, Fourth Department |
| Kimberly M. Larsen, Appellant, v Nitin S. Banwar, M.D., et al.,Respondents. |
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Brown & Tarantino, LLC, Buffalo (Ann M. Campbell of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.),entered June 19, 2008 in a medical malpractice action. The order granted the motion ofdefendants for summary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied, and the complaint is reinstated.
Memorandum: Plaintiff commenced this action seeking damages for injuries she allegedlysustained as the result of defendants' medical malpractice. We agree with plaintiff that SupremeCourt erred in granting defendants' motion seeking summary judgment dismissing the complaint.Where, as here, an expert's affidavit fails to address each of the specific factual claims ofnegligence raised in plaintiff's bill of particulars, that affidavit is insufficient to support a motionfor summary judgment as a matter of law (see Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874 [2008]; Larsen v Loychusuk, 55 AD3d560 [2008]). Thus, defendants' motion should have been denied, regardless of thesufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]; Grant, 55 AD3d at 875). Present—Smith, J.P., Peradotto,Carni, Pine and Gorski, JJ.