Barone v. Flynn

Appellate Division of the Supreme Court of New York

Barone v. Flynn

284 A.D.2d 422, 726 N.Y.S.2d 690, 2001 N.Y. App. Div. LEXIS 6330

Appellate Division of the Supreme Court of the State of New York·Decided June 18, 2001·Published·Cited by 1 cases

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Orange County (Berry, J.), dated May 25, 2000, which denied his motion for summary judgment dismissing the complaint.

[423]*423Ordered that the order is affirmed, with costs.

The defendant established a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiffs submitted the affirmation of the treating orthopedic surgeon, raising a triable issue of fact as to whether the defendant’s alleged failure to detect and treat a tear in the anterior cruciate ligament of the right knee of the injured plaintiff constituted medical malpractice. Therefore, the Supreme Court properly denied the defendant’s motion for summary judgment (see, Alvarez v Prospect Hosp., supra; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358; Taylor v St. Vincent’s Med. Ctr., 236 AD2d 461). O’Brien, J. P., S. Miller, Smith and Crane, JJ., concur.

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—In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Orange County (Berry, J.), dated May 25, 2000, which denied his motion for summary judgment dismissing the complaint.

[423]*423Ordered that the order is affirmed, with costs.

The defendant established a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiffs submitted the affirmation of the treating orthopedic surgeon, raising a triable issue of fact as to whether the defendant’s alleged failure to detect and treat a tear in the anterior cruciate ligament of the right knee of the injured plaintiff constituted medical malpractice. Therefore, the Supreme Court properly denied the defendant’s motion for summary judgment (see, Alvarez v Prospect Hosp., supra; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358; Taylor v St. Vincent’s Med. Ctr., 236 AD2d 461). O’Brien, J. P., S. Miller, Smith and Crane, JJ., concur.

Barone v. Flynn, 284 A.D.2d 422, 726 N.Y.S.2d 690, 2001 N.Y. App. Div. LEXIS 6330 (N.Y. Ct. App. 2001).

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