Donnelly v. Finkel

248 A.D.2d 664, 670 N.Y.S.2d 324, 1998 N.Y. App. Div. LEXIS 3423

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 30, 1998
• Status: Published

Opinion

—In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Stark, J.), entered February 7, 1997, which granted the motion of the respondents, G. Michael Peters, Robert Schrier, Steven I. Ross, Gerardo A. San Roman, and Schrier, Peters, Ross & San Roman, for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is reversed, with costs, and the respondents’ motion for summary judgment is denied.

This action, inter alia, to recover damages for medical malpractice concerns the defendants’ alleged failure to properly diagnose and treat the plaintiffs decedent’s ovarian cancer. On June 22, 1988, the decedent underwent surgery performed by the respondent G. Michael Peters, who was assisted by the respondent Robert Schrier. Peters and Schrier are members of the respondent medical group, Schrier, Peters, Ross & San Roman. Within 10 months of the surgery, the decedent was diagnosed with Stage IV ovarian cancer. She died one month later.

Contrary to the conclusion of the Supreme Court, the evidence submitted by the plaintiff in opposition to the respondents’ motion for summary judgment was sufficient to raise a triable issue of fact as to whether the respondents’ actions and/or omissions were a proximate cause of the damages alleged (see, Fileccia v Massapequa Gen. Hosp., 63 NY2d 639; McMahon v Badia, 195 AD2d 445).

Rosenblatt, J. P., Ritter, Sullivan and Goldstein, JJ., concur.