Opinion
March 16, 2000
Order, Supreme Court, Bronx County (Bertram Katz, J.), entered on or about February 4, 1999, which, in a medical malpractice action, denied defendant-appellant's motion for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.
John J. Bailly for plaintiffs-respondents.
Wayne M. Rubin for defendant-respondent.
Martin B. Adams for defendant-appellant.
Williams, J.P., Ellerin, Rubin, Saxe, JJ.
Defendant-appellant pediatric cardiologist's motion for summary judgment was properly denied since a material issue of fact exists as to whether defendant-appellant's alleged statement, that he did not believe the infant plaintiff was in congestive heart failure and that his examination of the child could wait until the following day, constituted incorrect affirmative advice (see,Miller v. Sullivan, 214 A.D.2d 822, 823), reasonably and foreseeably relied upon by the infant plaintiff's pediatrician, defendant-respondent, to plaintiff's detriment (see, Heller v. Peekskill Community Hosp., 198 A.D.2d 265).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.