Opinion
February 4, 1994
Appeal from the Supreme Court, Genesee County, Gossel, J.
Present — Denman, P.J., Green, Balio, Lawton and Boehm, JJ.
Judgment unanimously reversed on the law with costs, motion denied and complaint against Genesee Memorial Hospital reinstated. Memorandum: Supreme Court properly denied defendant Rathor's motion for summary judgment. Rathor failed to sustain his burden to set forth evidentiary proof, in admissible form, eliminating any material issue of fact (see, Stevens v. Waters, 201 A.D.2d 872 [decided herewith]; Dix v. Pines Hotel, 188 A.D.2d 1007). The facts relied upon by the movant's expert in rendering his expert medical opinion conflict with the deposition testimony of defendants Rathor and Danesh. Thus, credibility issues were raised concerning the expert's opinion that could not be resolved on a summary judgment motion (see, Capelin Assocs. v. Globe Mfg. Corp., 34 N.Y.2d 338; Mickelson v. Babcock, 190 A.D.2d 1037). Moreover, the expert's affidavit failed to negate factual issues concerning several of the allegations of malpractice set forth in the bill of particulars.
Supreme Court erred, however, in granting the motion of defendant Genesee Memorial Hospital (Hospital) for summary judgment. There is a factual issue regarding the alleged negligence of Hospital nurses in monitoring the pulse in decedent's lower left leg. There are also factual issues, raised by conflicting expert opinions, whether the Hospital was negligent in failing to have a Doppler ultrasonic stethoscope available and whether that failure contributed to decedent's injury.