Smalls v. Mercy Medical Center

50 A.D.3d 670, 854 N.Y.S.2d 535

Opinion

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered August 8, 2006, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Contrary to the defendant’s contention, the Supreme Court properly denied its motion for summary judgment dismissing the complaint. The plaintiff seeks to recover damages against the defendant based upon a theory of res ipsa loquitur. In support of its motion, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Porter v Milhorat, 303 AD2d 736 [2003]). A triable issue of fact exists, inter alia, as to whether the injury at issue was “caused by an agency or instrumentality within the exclusive control of the defendant” (Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]). The defendant’s failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the plaintiffs opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). Rivera, J.P., Lifson, Angiolillo and Balkin, JJ., concur.