Mineo v. Taefi

280 A.D.2d 971, 721 N.Y.S.2d 217, 2001 N.Y. App. Div. LEXIS 4181

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 7, 2001
• Status: Published

Opinion

—Order unanimously affirmed with costs. Memorandum: Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint in this medical malpractice action. We agree with plaintiff that defendant’s motion papers fail to address her allegation that defendant failed to diagnose postpartum “retained products of conception” and to treat that condition, and thus defendant failed to meet his initial burden of establishing his entitlement to judgment as a matter of law (see generally, Zuckerman v City of New York, 49 NY2d 557, 562). Even assuming, arguendo, that defendant met his initial burden, we conclude that plaintiff raised an issue of fact whether she complained of bleeding, cramps and fever on her first follow-up appointment with defendant. In addition, plaintiffs expert raised an issue of fact whether defendant departed from acceptable standards of medical care by failing to diagnose, treat or make a record of plaintiffs complaints (see, Bennett v Knipfing, 262 AD2d 260). (Appeal from Order of Supreme Court, Erie County, Fallon, J. — Summary Judgment.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Kehoe and Lawton, JJ.