Melendez v Dorville

Melendez v Dorville 2012 NY Slip Op 02042 Decided on March 20, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 20, 2012
Andrias, J.P., Sweeny, Moskowitz, Freedman, Manzanet-Daniels, JJ.
7121 350748/08

[*1]Angelina Melendez, an Infant by Her Mother and Natural Guardian, et al., Plaintiffs-Respondents,

v

Maria Dorville, et al., Defendants-Appellants.




Ecket Seamans Cherin & Mellott, LLC, White Plains (Mark E.
Thabet of counsel), for appellants.
Trolman, Glaser & Lichtman, P.C., New York (Michael T.
Altman of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered February 23, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to come forward with evidence to show that none of the injuries alleged in the bill of particulars could have been proximately caused or exacerbated by the infant plaintiff's elevated blood lead levels (see Bygrave v New York City Hous. Auth., 65 AD3d 842, 846-847 [2009]). In any event, plaintiffs raised triable issues of fact as to the cause and extent of the infant's injuries. Contrary to defendants' contention, the affidavits by plaintiffs' experts were not speculative. The experts' conclusions were soundly based upon their personal examinations, administration of objective tests, and explicit consideration of the infant's records (see Vazquez v New York City Hous. Auth., 79 AD3d 623 [2010]; Zapata v Sutton, 84 AD3d 521 [2011]).

The motion court made no determination of the credibility of defendants' expert. It simply considered the bases for his opinion, and determined that the experts' conflicting opinions presented triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]). Moreover, as the nonmovants, plaintiffs are entitled to all the reasonable inferences to be drawn in their favor (see [*2]Gulf Ins. Co. v Transatlantic Reins. Co., 69 AD3d 71, 86 [2009]).

We have considered defendants' remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MARCH 20, 2012

CLERK