BARONE v. FLYNN (2001)

Supreme Court, Appellate Division, Second Department, New York.

Peter J. BARONE, et al., Respondents, v. John B. FLYNN, Jr., etc., Appellant.

Decided: June 18, 2001

CORNELIUS J. O'BRIEN, J.P., SONDRA MILLER, NANCY E. SMITH and STEPHEN G. CRANE, JJ.

Steinberg & Symer, LLP, Poughkeepsie, N.Y. (Ellen Fischer Bopp of counsel), for appellant. Dominick J. Robustelli, White Plains, N.Y. (Alexander V. Sansone of counsel), for respondents.

In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Orange County (Berry, J.), dated May 25, 2000, which denied his motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The defendant established a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In opposition, the plaintiffs submitted the affirmation of the treating orthopedic surgeon, raising a triable issue of fact as to whether the defendant's alleged failure to detect and treat a tear in the anterior cruciate ligament of the right knee of the injured plaintiff constituted medical malpractice. Therefore, the Supreme Court properly denied the defendant's motion for summary judgment (see, Alvarez v. Prospect Hosp., supra; Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 669 N.Y.S.2d 631; Taylor v. St. Vincent's Med. Ctr. of Richmond, 236 A.D.2d 461, 654 N.Y.S.2d 583).

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