Gardiner v Halleran

Gardiner v Halleran 2019 NY Slip Op 03512 Decided on May 3, 2019 Appellate Division, Fourth 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 May 3, 2019 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
512 CA 18-02224

[*1]EILEEN A. GARDINER AND DONALD T. GARDINER, PLAINTIFFS-APPELLANTS,

v

DAVID R. HALLERAN, M.D., INDIVIDUALLY AND AS AGENT, OFFICER AND/OR EMPLOYEE OF COLON RECTAL ASSOCIATES OF CENTRAL NEW YORK, LLP, ET AL., DEFENDANTS, LAWRENCE C. CALABRESE, M.D., INDIVIDUALLY AND AS AN AGENT, OFFICER AND/OR EMPLOYEE OF ST. JOSEPH'S IMAGING ASSOCIATES, PLLC, AND ST. JOSEPH'S IMAGING ASSOCIATES, PLLC, DEFENDANTS-RESPONDENTS.

PORTER NORDBY HOWE LLP, SYRACUSE (ERIC C. NORDBY OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.

SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (CHRISTOPHER F. DEFRANCESCO OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.

Appeal from an order of the Supreme Court, Onondaga County (Anthony J. Paris, J.), entered April 19, 2018. The order granted the motion of defendants-respondents for summary judgment and dismissed the complaint against them.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendants-respondents is denied, and the complaint against defendants-respondents is reinstated.

Memorandum: Plaintiffs commenced this medical malpractice action in connection with a surgical procedure performed upon plaintiff Eileen A. Gardiner. Supreme Court erred in granting the motion of defendants-respondents (defendants) for summary judgment dismissing the complaint against them. Even assuming, arguendo, that defendants met their initial burden on their motion, we agree with plaintiffs that their medical expert's affidavit raised triable issues of fact in opposition (see Fay v Satterly, 158 AD3d 1220, 1221 [4th Dept 2018]). Where, as here, the "nonmovant's expert affidavit squarely opposes' the affirmation of the moving parties' expert, the result is a classic battle of the experts that is properly left to a jury for

resolution' " (Mason v Adhikary, 159 AD3d 1438, 1439 [4th Dept 2018]).

Entered: May 3, 2019

Mark W. Bennett

Clerk of the Court