Petty v. Pilgrim

22 A.D.3d 478, 802 N.Y.S.2d 217

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2005
• Status: Published

Opinions

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (M. Garson, J.), dated October 1, 2003, as granted the motion of the defendant Loma M. Clarke for summary judgment dismissing the complaint insofar as asserted against her.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Loma M. Clarke.

In opposition to the prima facie showing of the defendant Loma M. Clarke demonstrating her entitlement to summary judgment dismissing the complaint insofar as asserted against her, the plaintiffs raised triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The plaintiffs’ experts specified the departures allegedly committed by Dr. Clarke and the resultant injuries to the infant plaintiff that proximately resulted therefrom. Dr. Clarke’s reliance throughout the plaintiff mother’s labor on her alleged direct supervision by the attending private physician, Karl Pilgrim (now deceased), is not substantiated by the contemporaneous hospital records and nurses’ notes. A triable issue of fact exists as to whether Dr. Clarke’s actions or inaction were taken without Dr. Pilgrim’s directives (see Pearce v Klein, 293 AD2d 593, 594 [2002]).

Accordingly, the Supreme Court erred in granting Dr. Clarke’s motion for summary judgment dismissing the complaint insofar as asserted against her. Prudenti, P.J., Goldstein and Crane, JJ., concur.