Fischer v. Weiland

241 A.D.2d 439, 661 N.Y.S.2d 516, 1997 N.Y. App. Div. LEXIS 7274

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 7, 1997
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants Sherry Horn Kesden and Sherry Horn Kesden, M.D., P. C., appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated June 4, 1996, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

In support of their motion for summary judgment dismissing the complaint, the appellants failed to proffer evidence in admissible form sufficient “to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see also, Alvarez v Prospect Hosp., 68 NY2d 320). The Supreme Court therefore properly denied the motion. In reaching this determination, we have not considered the appellants’ arguments concerning causation, which were improperly raised for the first time in the reply papers submitted on the motion for summary judgment (see, Pinkston v Weiss, 238 AD2d 393; Lumbermens Mut. Cas. Co. v Morse Shoe Co., 218 AD2d 624; Ritt v Lenox Hill Hosp., 182 AD2d 560). Rosenblatt, J. P., Miller, O’Brien and Ritter, JJ., concur.