Reyz v. Khelemsky

10 A.D.3d 714, 781 N.Y.S.2d 913, 2004 N.Y. App. Div. LEXIS 11043

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 27, 2004
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, the defendant Boris Khorets appeals from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), entered January 13, 2004, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant Boris Khorets met his burden of establishing prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that Khorets acted within good and accepted standards of medical practice in his care and treatment of the decedent Mark Reyz (see Bellino v Spatz, 233 AD2d 355 [1996]).

In opposition to Khorets’ prima facie showing, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Khorets’ treatment of the decedent departed from good and accepted standards of medical practice. Moreover, the affidavit of the plaintiffs physician, to which Khorets did not object, also raised an issue of fact as to causation. Accordingly, Khorets’ motion was properly denied. Smith, J.P., Crane, Cozier and Lifson, JJ., concur.