Foley v. Flushing Hosp. & Med. Ctr.

34 N.Y.2d 863 (1974)

Richard Foley, an Infant, by His Parent John Foley, Appellant, v. Flushing Hospital and Medical Center et al., Respondents.

Court of Appeals of the State of New York.

Argued June 4, 1974.

Decided June 26, 1974.

Joseph P. Napoli, Harry H. Lipsig and Joseph B. Castleman for appellant.

E. Richard Rimmels, Jr. for Flushing Hospital and Medical Center, respondent.

Arnold Davis for Frank Labriola and another, respondents.

Concur: Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER and STEVENS. Taking no part: Judge RABIN.

Order reversed and a new trial granted, with costs to abide the event, in the following memorandum: Plaintiff made out a prima facie case as to all defendants sufficient to defeat a motion to dismiss and hence the Court of Appeals reverses. In doing so, there is, of course, no evaluation of the merits of the case. Moreover, also requiring reversal is the restriction of the examination of plaintiff's expert witness (see the dissenting opinion of Mr. Justice J. IRWIN SHAPIRO at the Appellate Division).