Geller v. Waldbaum

Appellate Division of the Supreme Court of New York

Geller v. Waldbaum

33 A.D.3d 855, 824 N.Y.S.2d 311

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 24, 2006

StatusPublished

This text of 33 A.D.3d 855 (Geller v. Waldbaum) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Geller v. Waldbaum, 33 A.D.3d 855, 824 N.Y.S.2d 311 (N.Y. Ct. App. 2006).

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Opinion

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Elliot Pellman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated January 9, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

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

The defendant Elliot Pellman met his burden of establishing his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that he acted within good and accepted standards of medical practice in his care and treat[856]*856ment of the decedent (see Mandel v New York County Pub. Adm’r, 29 AD3d 869 [2006]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713 [2003]).

However, in opposition, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Pellman’s treatment of the decedent departed from good and accepted standards of medical practice (see Mandel v New York County Pub. Adm’r, supra; Maggio v Werner, 213 AD2d 883 [1995]; Tiernan v Heinzen, 104 AD2d 645 [1984]). Accordingly, Pellman’s motion for summary judgment was properly denied. Florio, J.P, Goldstein, Luciano and Lunn, JJ., concur.

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In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Elliot Pellman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated January 9, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

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

The defendant Elliot Pellman met his burden of establishing his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that he acted within good and accepted standards of medical practice in his care and treat[856]*856ment of the decedent (see Mandel v New York County Pub. Adm’r, 29 AD3d 869 [2006]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713 [2003]).

However, in opposition, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Pellman’s treatment of the decedent departed from good and accepted standards of medical practice (see Mandel v New York County Pub. Adm’r, supra; Maggio v Werner, 213 AD2d 883 [1995]; Tiernan v Heinzen, 104 AD2d 645 [1984]). Accordingly, Pellman’s motion for summary judgment was properly denied. Florio, J.P, Goldstein, Luciano and Lunn, JJ., concur.

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Bluebook (online)

33 A.D.3d 855, 824 N.Y.S.2d 311, Counsel Stack Legal Research, https://law.counselstack.com/opinion/geller-v-waldbaum-nyappdiv-2006.

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