| Espinal v Jamaica Hosp. Med. Ctr. |
| 2010 NY Slip Op 01917 [71 AD3d 723] |
| March 9, 2010 |
| Appellate Division, Second Department |
| Steven Espinal, Respondent, v Jamaica Hospital MedicalCenter et al., Appellants, et al., Defendants. |
—[*1] Louis Grandelli, P.C., New York, N.Y. (John J. Rapawy of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Jamaica HospitalMedical Center and Roger Torres appeal from an order of the Supreme Court, Kings County(Rosenberg, J.), dated April 8, 2009, which denied their motion for summary judgmentdismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiff sustained serious head injuries in a motorcycle accident, and was hospitalizedfor more than two months. During his hospitalization, the plaintiff developed hydrocephalus, anaccumulation of fluid in the brain, which allegedly exacerbated the injuries he had sustained inthe accident. The plaintiff subsequently commenced this action against several parties, includingthe appellants Jamaica Hospital Medical Center and Frank Torres, a hospital security guard,claiming, inter alia, that he had developed hydrocephalus as a result of being assaulted orimproperly restrained by Torres. The appellants moved for summary judgment dismissing thecomplaint insofar as asserted against them, relying upon the expert affidavit of a board-certifiedneurologist who attributed the plaintiff's development of hydrocephalus solely to the serioushead injuries he had sustained in the accident. In opposition, the plaintiff submitted an affidavitfrom his treating neurologist, who concluded that hydrocephalus could have developed as aresult of the reported assault and aggravated the plaintiff's preexisting brain injuries. TheSupreme Court denied the appellants' motion, finding that the conflicting expert opinions raiseda triable issue of fact as to whether the plaintiff's hydrocephalus was caused by the allegedassault. We agree.
The appellants' contention that the plaintiff's expert was unqualified to give an expertopinion because the plaintiff did not provide evidence of his credentials is without merit. Theplaintiff's expert established his qualifications by attaching a curriculum vitae demonstrating thathe was a board-certified neurologist (see Winney v County of Saratoga, 8 AD3d 944, 945 [2004]). Inany event, the expert's alleged lack of experience is a factor which goes to the weight to be givento his opinion, and not to its admissibility (see Texter v Middletown Dialysis Ctr., Inc., 22 AD3d 831 [2005];Julien v Physician's Hosp., 231 AD2d 678, 680 [1996]; Ariola v Long, 197AD2d 605 [1993]).[*2]
Furthermore, the affidavit of the plaintiff's expert wassufficient to raise a triable issue of fact. "It is well settled that an expert's opinion must be basedon facts in the record personally known to the witness, and that the expert may not assume factsnot supported by the evidence in order to reach his or her conclusion" (Erbstein vSavasatit, 274 AD2d 445, 446 [2000]; see Cassano v Hagstrom, 5 NY2d 643, 646[1959]; Plainview Water Dist. v ExxonMobil Corp., 66 AD3d 754, 755 [2009]). The expert's opinion, taken as a whole, mustalso reflect an acceptable level of certainty in order to be admissible (see Matott v Ward,48 NY2d 455, 459-460 [1979]; Erbstein v Savasatit, 274 AD2d at 446). Contrary to theappellants' contention, the affidavit of the plaintiff's expert was neither so conclusory orspeculative, nor without basis in the record, as to render it inadmissible (see Erbstein vSavasatit, 274 AD2d at 446; seealso Dandrea v Hertz, 23 AD3d 332, 333 [2005]). Rather, "[a]ny purportedshortcomings in the affidavit went merely to the weight of the opinion" (Erbstein vSavasatit, 274 AD2d at 446). Since the parties offered conflicting expert opinions as towhether the alleged assault exacerbated the injuries the plaintiff sustained in the accident, aquestion of credibility arises which requires resolution by a jury (see Colao v St. Vincent's Med. Ctr., 65AD3d 660, 661 [2009]; Dandrea v Hertz, 23 AD3d at 333; Barbuto v WinthropUniv. Hosp., 305 AD2d 623, 624 [2003]). Dillon, J.P., Miller, Eng and Roman, JJ., concur.