Young v Struhl

Young v Struhl 2011 NY Slip Op 00219 Decided on January 11, 2011 Appellate Division, Second 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 January 11, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
THOMAS A. DICKERSON
CHERYL E. CHAMBERS
PLUMMER E. LOTT, JJ.
2009-07275
(Index No. 37887/05)

[*1]Michael J. Young, et al., appellants,

v

Steven Struhl, et al., respondents, et al., defendants.




Godosky & Gentile, P.C., New York, N.Y. (Pollack Pollack Isaac
& De Cicco [Brian J. Isaac and Michael H. Zhu], of counsel), for
appellants.
Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Michael
P. Kandler and Stephen J. Barrett of
counsel), for respondents.


DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Kings County (Rosenberg, J.), dated June 15, 2009, which granted the motion of the defendants Steven Struhl and Steven Struhl, M.D., P.C., for summary judgment dismissing the complaint insofar as asserted against those defendants.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendants Steven Struhl and Steven Struhl, M.D., P.C., for summary judgment dismissing the complaint insofar as asserted against them is denied.

The moving defendants failed to establish their prima facie entitlement to judgment as a matter of with respect to the issue of whether they provided a continuous course of treatment for the specific condition giving rise to the instant action, so as to toll the statute of limitations (see CPLR 214-a; Zito v Jastremski, 58 AD3d 724, 726; Vaughn v City of New York, 4 AD3d 412, 414; Denlea v Hanswirth, 303 AD2d 711, 712). Moreover, although the moving defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting the affidavit of two experts who opined, inter alia, that the moving defendants did not deviate from accepted standards of care in their treatment of the plaintiff Michael J. Young, and that any alleged deviation was not the proximate cause of the plaintiffs' damages, the affidavit of the plaintiffs' expert, submitted in opposition to the motion, raised triable issues of fact (see Martin v Siegenfeld, 70 AD3d 786, 787-788; Colao v St. Vincent's Med. Ctr., 65 AD3d 660, 661-662; Howard v Kennedy, 60 AD3d 905, 906). Accordingly, the Supreme Court should have denied the motion of the defendants Steven Struhl and Steven Struhl, M.D., P.C., for summary judgment dismissing the complaint insofar as asserted against them.
RIVERA, J.P., DICKERSON, CHAMBERS and LOTT, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court