Opinion
2013-06-19
Susan PINTO, respondent, v. PUTNAM HOSPITAL CENTER, INC., et al., appellants.
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for appellants. Worby Groner Edelman, LLP, White Plains, N.Y. (Joel B. Savit and Sara Schepps Matschke of counsel), for respondent.
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for appellants. Worby Groner Edelman, LLP, White Plains, N.Y. (Joel B. Savit and Sara Schepps Matschke of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendants appeal from an order of the Supreme Court, Putnam County (Nicolai, J.), dated May 25, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff commenced this action, inter alia, to recover damages for medical malpractice, alleging that the defendant Laura Huber adjusted the plaintiff's cane too low, causing the plaintiff to fall when she used the cane.
The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. The defendants established their prima facie entitlement to judgment as a matter of law by submitting, inter alia, an expert affirmation establishing that Huber did not depart from accepted standards of care, and that any departure was not a proximate cause of the plaintiff's alleged injuries ( see Wexelbaum v. Jean, 80 A.D.3d 756, 757, 915 N.Y.S.2d 161;Roca v. Perel, 51 A.D.3d 757, 758–759, 859 N.Y.S.2d 203). In opposition, however, the plaintiff submitted affidavits from her medical experts which raised triable issues of fact as to whether Huber departed from accepted standards of medical practice when adjusting the cane, and whether that alleged departure was a proximate cause of the plaintiff's alleged injuries. “Where the parties offer conflicting expert opinions, issues of credibility arise requiring jury resolution” ( Martin v. Siegenfeld, 70 A.D.3d 786, 788, 894 N.Y.S.2d 115;see Colao v. St. Vincent's Med. Ctr., 65 A.D.3d 660, 885 N.Y.S.2d 306;Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661).