Pinto v. Putnam Hospital Center, Inc.

107 A.D.3d 869, 966 N.Y.S.2d 866

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 2013
• Status: Published

Opinion

In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Putnam County (Nicolai, J.), dated May 25, 2012, which denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff commenced this action, inter alia, to recover damages for medical malpractice, alleging that the defendant Laura Huber adjusted the plaintiffs cane too low, causing the plaintiff to fall when she used the cane.

The Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. The defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation establishing that Huber did not depart from accepted standards of care, and that any departure was not a proximate cause of the plaintiffs alleged injuries (see Wexelbaum v Jean, 80 AD3d 756, 757 [2011]; Roca v Perel, 51 AD3d 757, 758-759 [2008]). In opposition, however, the plaintiff submitted affidavits from her medical experts which raised triable issues of fact as to whether Huber departed from accepted standards of medical practice when adjusting the cane, and whether that alleged departure was a proximate cause of the plaintiffs alleged injuries. “Where the parties offer conflicting expert opinions, issues of credibility arise requiring jury resolution” (Martin v Siegenfeld, 70 AD3d 786, 788 [2010]; see Colao v St. Vincent’s Med. Ctr., 65 AD3d 660 [2009]; Feinberg v Feit, 23 AD3d 517, 519 [2005]). Balkin, J.P., Hall, Lott and Miller, JJ., concur.