Meling v. Devi

262 A.D.2d 373, 691 N.Y.S.2d 313, 1999 N.Y. App. Div. LEXIS 6322

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 7, 1999
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Nastasi, J.), entered April 20, 1998, which granted the respondents’ motions for summary judgment dismissing the complaint insofar as asserted against them, and (2) an order of the same court, entered October 1, 1998, which denied her motion, denominated as one to renew and reargue, but which was in actuality a motion for reargument.

Ordered that the appeal from the order entered October 1,

1998, is dismissed, as no appeal lies from an order denying re-argument; and it is further,

Ordered that the order entered April 20, 1998, is reversed, on the law, and the respondents’ motions for summary judgment are denied; and it is further,

Ordered that the appellant is awarded one bill of costs payable by the respondents appearing separately and filing separate briefs.

The respondents failed to make a prima facie showing of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). In any event, the opinions of the plaintiff’s experts, set forth in the plaintiff’s opposition papers, were sufficient to raise issues of fact. Therefore, summary judgment should not have been granted to the respondents. S. Miller, J. P., Ritter, Altman and H. Miller, JJ., concur.