Vendette v. Feinberg

Appellate Division of the Supreme Court of New York

Vendette v. Feinberg

125 A.D.2d 960, 510 N.Y.S.2d 355, 1986 N.Y. App. Div. LEXIS 63143

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 19, 1986

StatusPublished

Cited by2 cases

This text of 125 A.D.2d 960 (Vendette v. Feinberg) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Vendette v. Feinberg, 125 A.D.2d 960, 510 N.Y.S.2d 355, 1986 N.Y. App. Div. LEXIS 63143 (N.Y. Ct. App. 1986).

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Opinion

— Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: Special Term erred in granting summary judgment to the defendant doctor in this medical malpractice action. Although defendant, by expert opinion evidence, sought to establish his entitlement to summary judgment (cf. Winegrad v New York Univ. Med. Center, 64 NY2d 851), plaintiff sufficiently opposed the motion by alleging defendant admitted to him that defendant misread an X ray revealing that the bones in plaintiff’s wrist had not fully healed. Such an admission of a party constitutes evidence in admissible form necessary to defeat a motion for summary judgment (see generally, Zuckerman v City of New York, 49 NY2d 557; Richardson, Evidence § 209 [Prince 10th edj; see also, Dietz v Aronson, 244 App Div 746). Although defendant denied making the admission, this creates a triable issue of fact precluding summary judgment. Cases upon which defendant relies (e.g., Maust v Arseneau, 116 AD2d 1012; Neuman v Greenstein, 99 AD2d 1018; Pan v Coburn, 95 AD2d 670; Himber v Pfizer Labs., 82 AD2d 776, 777) did not involve an alleged admission by the defendant doctor and are they not controlling of the facts presented here. (Appeal from order of Supreme Court, Chautauqua County, Kubiniec, J. — summary judgment.) Present — Doerr, J. P., Green, Balio, Lawton and Schnepp, JJ.

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— Order unanimously reversed, on the law, with costs, and motion denied. Memorandum: Special Term erred in granting summary judgment to the defendant doctor in this medical malpractice action. Although defendant, by expert opinion evidence, sought to establish his entitlement to summary judgment (cf. Winegrad v New York Univ. Med. Center, 64 NY2d 851), plaintiff sufficiently opposed the motion by alleging defendant admitted to him that defendant misread an X ray revealing that the bones in plaintiff’s wrist had not fully healed. Such an admission of a party constitutes evidence in admissible form necessary to defeat a motion for summary judgment (see generally, Zuckerman v City of New York, 49 NY2d 557; Richardson, Evidence § 209 [Prince 10th edj; see also, Dietz v Aronson, 244 App Div 746). Although defendant denied making the admission, this creates a triable issue of fact precluding summary judgment. Cases upon which defendant relies (e.g., Maust v Arseneau, 116 AD2d 1012; Neuman v Greenstein, 99 AD2d 1018; Pan v Coburn, 95 AD2d 670; Himber v Pfizer Labs., 82 AD2d 776, 777) did not involve an alleged admission by the defendant doctor and are they not controlling of the facts presented here. (Appeal from order of Supreme Court, Chautauqua County, Kubiniec, J. — summary judgment.) Present — Doerr, J. P., Green, Balio, Lawton and Schnepp, JJ.

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Bluebook (online)

125 A.D.2d 960, 510 N.Y.S.2d 355, 1986 N.Y. App. Div. LEXIS 63143, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vendette-v-feinberg-nyappdiv-1986.

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