Donald Stewart v Victor Krupitsky

Stewart v Krupitsky 2004 NY Slip Op 02860 [6 AD3d 256] April 20, 2004 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 30, 2004

Donald Stewart, Jr., Plaintiff,
v
Victor Krupitsky et al., Defendants. Victor Krupitsky, Third-Party Plaintiff-Respondent, v Long Island College Hospital et al., Third-Party Defendants-Appellants.

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Order, Supreme Court, Bronx County (Sallie Manzanet, J.), entered on or about November 14, 2003, which, to the extent appealed from as limited by the briefs, denied the cross motion of the third-party defendants for summary judgment dismissing the claims against them, unanimously affirmed, without costs.

Craniosynostosis surgery was performed on the infant plaintiff to correct a congenital skull malformation, but was delayed until the child was 14 months of age. Third-party defendants' experts asserted that the surgery was cosmetic in nature, thus precluding damages proximately resulting from the delay. Plaintiff's experts countered that the delay in diagnosing and treating the craniosynostosis was what led to plaintiff's mental retardation. The contrasting opinions raise questions of fact which must be decided by a jury (Celentano v St. Luke's [*2]Roosevelt Hosp. Med. Ctr., 170 AD2d 198 [1991]). We have examined appellants' other contentions and find them to be unavailing. Concur—Buckley, P.J., Nardelli, Andrias, Sullivan and Gonzalez, JJ.