Lead Opinion
In a medical malpractice action, the plaintiff appeals (1) from an order of the Supreme Court, Westchester County (Gurahian, J.), entered February 21, 1986, which granted the motion of the defendant Stuart T. Nevins for summary judgment dismissing the complaint as against him, and (2) from so much of an order of the same court, entered June 13, 1986, as, upon renewal and reargument, adhered to the original determination.
Ordered that the appeal from the order entered February 21, 1986, is dismissed, as that order was superseded by the order entered June 13, 1986, made upon renewal and reargument; and it is further,
Ordered that the order entered June 13, 1986, is reversed insofar as appealed from, the order entered February 21, 1986 is vacated, and the motion for summary judgment is denied; and it is further,
Ordered that the plaintiff is awarded one bill of costs.
In a medical malpractice action, in order to demonstrate the existence of a triable issue of fact, a plaintiff must submit evidentiary facts or materials to rebut a prima facie showing by the defendant physician that he was not negligent in treating the plaintiff. The affirmations in this case of Dr. Peter Lichtenfeld raise triable issues of fact concerning whether the alleged failure of the defendant Nevins to timely notify the plaintiff or her neurologist of the results of certain tests constituted a breach of acceptable medical practice, and whether this failure delayed the proper diagnosis of the plaintiffs condition, thus exacerbating her condition. Inasmuch as she has set forth more than mere conclusory and general allegations unsupported by competent evidence, the plaintiff has met her burden (cf., Alvarez v Prospect Hosp., 68 NY2d 320, 325). Accordingly, the court erred in granting summary judgment to the defendant Nevins. Niehoff, Weinstein and Kunzeman, JJ., concur.
Concurrence Opinion
In my view, the court erred in granting the plaintiffs motion, which was, in effect, for renewal and reconsideration of the motion of the defendant Stuart T. Nevins for summary judgment dismissing the complaint as against him, which was granted by a prior order entered February 21, 1986. The plaintiffs motion to renew was essentially based on an affidavit from her expert, Dr. Peter Lichtenfeld. The record indicates that the plaintiffs initial opposition papers to the defendant Nevins’ motion for summary judgment, consisted, inter alia, of an affidavit from Dr. Lichtenfeld, to the effect that Dr. Nevins’ conduct constituted a departure from "good and customary practice”. Since Dr. Lichtenfeld made no mention in his first affidavit of the issue of causation, the defendant Nevins’ motion for summary judgment was properly granted by the court in its order entered February 21, 1986. In her motion to renew, the plaintiff submitted a second
However, since the defendant Nevins has not cross-appealed from so much of the order entered June 13, 1986, as granted the plaintiff’s motion to renew, I am constrained to concur in the result reached by the majority.
