Geller v Waldbaum

Geller v Waldbaum 2006 NY Slip Op 07699 [33 AD3d 855] October 24, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 13, 2006

Claire Geller et al., Respondents,
v
Robert Steven Waldbaum et al., Defendants, and Elliot Pellman, Appellant.

—[*1]

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Elliot Pellman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated January 9, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant Elliot Pellman met his burden of establishing his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that he acted within good and accepted standards of medical practice in his care and treatment of the decedent (see Mandel v New York County Pub. Adm'r, 29 AD3d 869 [2006]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713 [2003]).

However, in opposition, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Pellman's treatment of the decedent departed from good and accepted standards of medical practice (see Mandel v New York County Pub. Adm'r, supra; Maggio v Werner, 213 AD2d 883 [1995]; Tiernan v Heinzen, 104 AD2d 645 [1984]). Accordingly, Pellman's motion for summary [*2]judgment was properly denied. Florio, J.P., Goldstein, Luciano and Lunn, JJ., concur.