Opinion
December 8, 1997
Appeal from the Supreme Court, Nassau County (Davis, J.).
Ordered that the appeal by the defendant South Nassau Communities Hospital is dismissed ( see, Nunez v. Travelers Ins. Co., 139 A.D.2d 712; Hauser v. North Rockland Cent. School Dist. No. 1, 166 A.D.2d 553); and it is further,
Ordered that, on the appeal of the plaintiff, the order is reversed, on the law, the motion is denied, and the complaint is reinstated insofar as asserted against the defendant Norma Wenger; and it is further,
Ordered that the plaintiff is awarded one bill of costs payable by the defendant Norma Wenger.
A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, proffering sufficient evidence to demonstrate an absence of any material issues of fact ( see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). Failure to proffer such evidence warrants denial of the motion regardless of the sufficiency of the opposing papers ( see, Alvarez v. Prospect Hosp., supra). Here, although the defendant Wenger proffered the affidavit of a medical expert, the affidavit was based, in part, on disputed or apparently incorrect facts and, therefore, failed to establish the absence of material issues of fact ( see, Muscatello v. City of New York, 215 A.D.2d 463). Accordingly, the defendant Wenger's motion for summary judgment should have been denied.
O'Brien, J. P., Ritter, Thompson and Joy, JJ., concur.