Opinion
October 1, 1999
Appeals from Order of Supreme Court, Oneida County, Buckley, J. — Summary Judgment.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum:
In this medical malpractice action, Supreme Court erred in granting that part of plaintiffs' cross motion seeking partial summary judgment against James F. Cesare, M.D. (defendant) on the issue of liability. The complaint alleges that defendants are responsible for failing to remove a surgical sponge from the abdominal cavity of plaintiff Anna Cianfrocco during an operative procedure. The surgery was performed by defendant, and a circulating nurse and scrub technician were responsible for the sponge count. Although plaintiffs met their initial burden of establishing entitlement to judgment as a matter of law (see, Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 497-498; Benson v. Dean, 232 N.Y. 52; Blackburn v. Baker, 227 App. Div. 588, 590), defendant raised an issue of fact whether his reliance on the sponge count was reasonable (see, Blackburn v. Baker, supra, at 589-590; see also, Tallarico v. Nassau Hosp., 115 A.D.2d 646; Gravitt v. Newman, 114 A.D.2d 1000). The court erred in determining that defendant's affidavits were conclusory and thus insufficient to defeat plaintiffs' cross motion. In averring that he did not deviate from accepted practice in relying upon the sponge count, defendant reviewed in detail the nature of the alleged malpractice and explained why it is good and accepted practice for a surgeon to rely upon the sponge count of the hospital staff (see, Maust v. Arseneau, 116 A.D.2d 1012; cf., Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).
The court properly granted that part of plaintiffs' cross motion seeking partial summary judgment against defendant St. Luke's Memorial Hospital Center (Hospital) on the issue of liability. Plaintiffs met their initial burden, and the Hospital failed to raise a triable issue of fact with respect to its negligence. We modify the order, therefore, by denying that part of plaintiffs' cross motion seeking partial summary judgment against defendant.
PRESENT: PINE, J. P., WISNER, HURLBUTT, SCUDDER AND CALLAHAN, JJ.