Bunk v. Blue Cross & Blue Shield of Utica-Watertown

244 A.D.2d 862, 668 N.Y.S.2d 121, 1997 N.Y. App. Div. LEXIS 12188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 1997
• Status: Published

Opinion

—Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied defendant’s motion for summary judgment but erred in granting plaintiffs’ cross motion for summary judgment. “On a motion for summary judgment, the court should accept as true the evidence submitted by the opposing party and any evidence of the movant which favors the opposing party” (O’Sullivan v Presbyterian Hosp., 217 AD2d 98, 101). In granting plaintiffs’ cross motion, the court erroneously disregarded the opinion of defendant’s expert, which was supported by entries in the medical records of plaintiff Fay Bunk. Defendant thereby raised an issue of fact precluding summary judgment (see, Zuckerman v City of New York, 49 NY2d 557). Therefore, we modify the order by denying plaintiffs’ cross motion. (Appeal from Order of Supreme Court, Oneida County, Buckley, J.—Summary Judgment.) Present— Denman, P. J., Hayes, Callahan, Doerr and Boehm, JJ.