GELLER v. Elliot Pellman, etc., appellant. (2006)

In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Elliot Pellman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated January 9, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendant Elliot Pellman met his burden of establishing his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that he acted within good and accepted standards of medical practice in his care and treatment of the decedent (see Mandel v. New York County Pub. Adm'r, 29 A.D.3d 869, 815 N.Y.S.2d 275;  Wasserman v. Staten Is. Radiological Assoc., 2 A.D.3d 713, 770 N.Y.S.2d 108).

However, in opposition, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Pellman's treatment of the decedent departed from good and accepted standards of medical practice (see Mandel v. New York County Pub. Adm'r, supra;  Maggio v. Werner, 213 A.D.2d 883, 623 N.Y.S.2d 424;  Tiernan v. Heinzen, 104 A.D.2d 645, 480 N.Y.S.2d 24).   Accordingly, Pellman's motion for summary judgment was properly denied.