Vincini v. Insel

1 A.D.2d 351, 766 N.Y.S.2d 569

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 3, 2003
• Status: Published

Opinion

In an action to recover damages for medical malpractice, etc., the plaintiff appeals from so much of an order of the Supreme Court, Kings County (Belen, J.), dated June 24, 2002, as granted those branches of the motion of the defendants Herbert A. Insel, Michael Krumholz, and Lenox Hill Hospital which were for summary judgment dismissing the complaint insofar as asserted against the defendants Michael Krumholz and Lenox Hill Hospital.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Michael Krumholz and Lenox Hill Hospital are denied, and the complaint is reinstated against those defendants.

The defendants Dr. Michael Krumholz and Lenox Hill Hospital failed to establish their entitlement to judgment as a matter of law on the basis of the conclusory affidavit of their expert witness (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Drago v King, 283 AD2d 603 [2001]; Allen v Blum, 212 AD2d 562 [1995]). Therefore, it was unnecessary to reach the sufficiency of the papers submitted in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., supra; cf., Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Drago v King, supra; Allen v Blum, supra).

Accordingly, the Supreme Court erred in granting those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against Krumholz and Lenox Hill Hospital. Altman, J.E, Smith, Friedmann and Crane, JJ., concur.