Myers v. Kamalian

231 A.D.2d 616, 647 N.Y.S.2d 967, 1996 N.Y. App. Div. LEXIS 9460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 23, 1996
• Status: Published

Opinion

In an action to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Orange County (Sherwood, J.), dated August 7, 1995, which denied his motion for partial summary judgment on the issue of liability.

Ordered that the order is affirmed, with costs.

It is well settled that in order to grant summary judgment, it must clearly appear that no material issue of fact has been presented. Issue finding rather than issue determination is the key. Since summary judgment is the procedural equivalent of a trial, any doubt as to the existence of a triable issue, or where the material issue of fact is "arguable”, requires denial of summary judgment (see, Salino v IPT Trucking, 203 AD2d 352; Museums at Stony Brook v Village of Patchogue Fire Dept., 146 AD2d 572).

Here, the Supreme Court’s finding that there are issues of fact as to the existence or nonexistence of a patella dislocation of the plaintiffs left knee while in the defendant’s care was supported by evidence in admissible form submitted by both parties (see, Viti v Franklin Gen. Hosp., 190 AD2d 790; see also, Russo v People’s Home Funding Corp., 212 AD2d 588; Kelly v St. Peter’s Hospice, 160 AD2d 1123). Miller, J. P., Pizzuto, Joy and McGinity, JJ., concur.