La v. New York Infirmary/Beekman Downtown Hospital

214 A.D.2d 425, 625 N.Y.S.2d 36, 1995 N.Y. App. Div. LEXIS 4369

Opinion

Order, Supreme Court, New York County (Stanley Sklar, J.), entered July 18, 1994, which, insofar as appealed from, denied defendant-appellant’s motion for summary judgment dismissing the complaint as against it with leave to renew upon completion of disclosure, unanimously affirmed, without costs.

We agree with the IAS Court that it would be premature to grant appellant summary judgment at this juncture, before plaintiff has had an opportunity to take the depositions of the attending physicians and others who might have knowledge concerning the key issue in the action, namely, whether the catheter was improperly inserted in the deceased’s neck initially or was properly implanted in her chest and migrated to her neck due to a defect in the product. This factual issue is clear from the face of the x-ray reports in the record, and it was therefore unnecessary that plaintiff submit an expert affidavit rebutting that of appellant. Concur—Ellerin, J. P., Rubin, Tom and Mazzarelli, JJ.