Smalls v Gould

Smalls v Gould 2007 NY Slip Op 03966 [40 AD3d 281] May 8, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, July 11, 2007

Henrietta Smalls, Respondent,
v
Thomas Gould, M.D., et al., Defendants, and Bio-Reference Laboratories et al., Appellants.

—[*1] Zichello & McIntyre, LLP, New York (Ann Teresa McIntyre of counsel), for Bio-Reference Laboratories, appellant.

Landman Corsi Ballaine & Ford, P.C., New York (Kenneth J. Burford and Andrew P. Keaveney of counsel), for Specialty Laboratories, Inc., appellant.

Scaffidi & Associates, New York (Robert M. Marino of counsel), for respondent.

Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered February 23, 2006, which denied the motions by defendants Bio-Reference Laboratories and Specialty Laboratories for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff commenced this action against the Laboratories defendants, as well as various doctors and healthcare providers, as a result of an alleged erroneous diagnosis of tuberculosis (TB). The Laboratories did not make a prima facie showing of entitlement to judgment as a matter of law with a tender of sufficient evidence to eliminate any material issues of fact. They failed to submit expert affidavits to establish that their procedures for testing and processing TB samples did not deviate from accepted laboratory practice and were not a contributing cause of plaintiff's injuries (cf. Couse v La Torre Orthopedic Lab., 221 AD2d 709 [1995]). The deposition testimony of their employees merely explained the procedures utilized, and did not establish the adequacy of those procedures. Accordingly, their motions were properly denied regardless of the [*2]sufficiency of plaintiff's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Concur—Mazzarelli, J.P., Saxe, Sullivan, Nardelli and Gonzalez, JJ.