Matter of Town of Waterford v New York State Dept. of Envtl. Conservation
Annotate this CaseThe Town commenced this proceeding to challenge the DEC's denial of portions of its request for information under the Freedom of Information Law (FOIL), Public Officers Law 87[2][g]. Specifically, the Town, a municipality that obtained its drinking water from the Hudson River, sought information relating to the Hudson River dredging project and the availability of alternative water supplies for local residents. The DEC denied access to certain records exchanged with the EPA by invoking the FOIL exception for inter-agency or intra-agency materials. The court agreed with the Town that this exemption was not applicable under the circumstances presented and therefore modified the determinations.
Decided on March 26, 2013
No. 50
[*1]Keith Orsi, & c., et al., Appellants,
v
Susan Haralabatos, & c., et al., Respondents, et al., Defendants.
Dana Heitz, for appellants.
Eric M. Kraus, for respondents.
MEMORANDUM:
The order of the Appellate Division should be reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks [*2]summary judgment dismissing the medical malpractice cause of action against them should be denied.
We agree with the Appellate Division that there are issues of fact as to whether Haralabatos and Stony Brook departed from the applicable standard of care. The Appellate Division erred, however, in granting summary judgment on the issue of proximate cause. Although the issue was preserved for review by being mentioned in an affirmation of counsel, it was not addressed in the experts' affidavits that Haralabatos and Stony Brook submitted in support of their summary judgment motion. These defendants thus failed to meet their initial burden of showing that any departure from the standard of care was not the proximate cause of plaintiff Keith Orsi's osteomyelitis.
* * * * * * * * * * * * * * * * *
Order reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks summary judgment dismissing the medical malpractice cause of action against them denied, in a memorandum. Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur.
Decided March 26, 2013
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