Opinion
831 CA 20-00748
11-12-2021
Jodi GBUREK, Individually, and as Administratrix of the Estate of Christopher Gburek, Deceased, Plaintiff-Appellant, v. Joanne COBLER, M.D., Buffalo Cardiology & Pulmonary Associates, Defendants-Respondents, et al., Defendants.
HOGANWILLIG PLLC, AMHERST (RYAN C. JOHNSEN OF COUNSEL), FOR PLAINTIFF-APPELLANT. CONNORS LLP, BUFFALO (SETH A. HISER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
HOGANWILLIG PLLC, AMHERST (RYAN C. JOHNSEN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
CONNORS LLP, BUFFALO (SETH A. HISER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
PRESENT: SMITH, J.P., NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint against defendants-respondents is reinstated.
Memorandum: In this medical malpractice action, plaintiff appeals from an order that granted the motion of defendants-respondents for, inter alia, summary judgment dismissing the complaint against them. As plaintiff correctly contends, Supreme Court erred in granting the motion because "the competing expert affidavits submitted by the parties create[d] triable issues of fact" ( Pick v. Midrox Ins. Co. , 186 A.D.3d 1079, 1079, 129 N.Y.S.3d 602 [4th Dept. 2020] ; see Thompson v. Hall , 191 A.D.3d 1265, 1267-1268, 141 N.Y.S.3d 576 [4th Dept. 2021] ). We reiterate that "the conflicting opinions of ... experts with respect to [a doctor's] alleged deviations from the accepted standard of medical care and proximate causation ... cannot be resolved on a motion for summary judgment" ( Thompson , 191 A.D.3d at 1267, 141 N.Y.S.3d 576 [internal quotation marks omitted]).