SMALLS v. MERCY MEDICAL CENTER (2008)

In an action to recover damages for medical malpractice, the defendant appeals from an order of the Supreme Court, Nassau County (Winslow, J.), entered August 8, 2006, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

Contrary to the defendant's contention, the Supreme Court properly denied its motion for summary judgment dismissing the complaint.   The plaintiff seeks to recover damages against the defendant based upon a theory of res ipsa loquitur.   In support of its motion, the defendant failed to make a prima facie showing of entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Porter v. Milhorat, 303 A.D.2d 736, 757 N.Y.S.2d 448).   A triable issue of fact exists, inter alia, as to whether the injury at issue was “caused by an agency or instrumentality within the exclusive control of the defendant” (Kambat v. St. Francis Hosp., 89 N.Y.2d 489, 494, 655 N.Y.S.2d 844, 678 N.E.2d 456).   The defendant's failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the plaintiff's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).