Mooney v. Montefiore Hospital & Medical Center

170 A.D.2d 658, 567 N.Y.S.2d 362, 1991 N.Y. App. Div. LEXIS 3190

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 25, 1991
• Status: Published

Opinion

In a medical malpractice action to recover damages for personal injuries, the defendants separately appeal from an order of the Supreme Court, Westchester County (Coppola, J.), dated July 21, 1989, which denied their respective motions for summary judgment.

Ordered that the order is affirmed, with one bill of costs.

The plaintiff underwent open heart surgery on October 2, 1981, at the defendant hospital, which surgery was performed by the defendant doctor. At some point, the plaintiff developed a "wound infection”, requiring two additional stays at the defendant hospital for treatment. He claims that the defendants were negligent in failing to diagnose the infection at the time he was discharged following surgery and in failing to properly treat him.

We find that the defendant doctor has failed to make a prima facie showing of his entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324; Winegrad v New York Univ. Med. Center, 64 NY2d 851). His affidavit and supporting documents do not conclusively establish that he was not negligent. Accordingly, there are issues of fact necessitating a trial for their resolution.

We also find that there are issues of fact concerning the defendant hospital’s liability (see, Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Center, supra). Bracken, J. P., Lawrence, Rosenblatt and Ritter, JJ., concur.