Supreme Court, Appellate Division, Second Department, New York.
Barbara KOVACIC, etc., et al., Respondents, v. Todd R. GRIFFIN, etc., et al., Appellants, et al., Defendant.
Decided: March 27, 2019
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JJ.
Kaufman Borgeest & Ryan LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for appellant Todd R. Griffin. Simmons Jannace DeLuca, LLP, Hauppauge, N.Y. (William T. Collins III of counsel), for appellant Lauri E. Budnick. Brown Gruttadaro Gaujean Prato, PLLC, White Plains, N.Y. (Bridget K. Dahle and Katherine W. Dandy of counsel), for appellants University Associates in Obstetrics & Gynecology, University Faculty Practice Corporation and J. Gerald Quirk. Barasch McGarry Salzman & Penson, New York, N.Y. (Dana Cutting and Dominique Penson of counsel), for respondents.
DECISION & ORDER
ORDERED that the order is affirmed, with one bill of costs payable by the appellants appearing separately and filing separate briefs.
The plaintiffs commenced this action to recover damages for medical malpractice and lack of informed consent arising out of prenatal care received by the plaintiff mother and the subsequent labor and delivery of the infant plaintiff. The plaintiff mother's prenatal care was overseen by, among others, the defendant J. Gerald Quirk, who was employed by the defendant University Associates in Obstetrics & Gynecology, University Faculty Practice Corporation (hereinafter together the University defendants). The infant plaintiff was delivered at Stony Brook University Hospital (hereinafter the hospital) on August 18, 2007. When the plaintiff mother arrived at the hospital, her care was supervised by the defendant Laurie E. Budnick; the delivery took place shortly after Budnick's shift ended and the defendant Todd R. Griffin's shift began. Griffin, Budnick, and the University defendants separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court denied the separate motions, and those defendants appeal.
Griffin, Budnick, and the University defendants each met their prima facie burden of demonstrating their entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against each of them by submitting affirmations from experts who asserted that the defendant physicians acted in accordance with good and accepted medical practice and did not deviate from the proper standard of care in the treatment they rendered to the plaintiffs. However, in opposition, the plaintiffs submitted an expert affidavit from a physician who was board certified in obstetrics and gynecology who opined that each of the defendant physicians departed from good and accepted practice in their treatment of the plaintiff mother during the prenatal care period and the ensuing labor and delivery of the infant plaintiff. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661; see Dray v. Staten Is. Univ. Hosp., 160 A.D.3d 614, 618, 75 N.Y.S.3d 59), since conflicting expert opinions raise credibility issues which are to be resolved by the factfinder (see Guctas v. Pessolano, 132 A.D.3d 632, 633, 17 N.Y.S.3d 749). In light of the conflicting expert opinions submitted here, we agree with the Supreme Court's denial of the defendants' separate motions for summary judgment dismissing the complaint insofar as asserted against each of them (see Cummings v. Brooklyn Hosp. Ctr., 147 A.D.3d 902, 904, 48 N.Y.S.3d 420; Keesler v. Small, 140 A.D.3d 1021, 1023, 35 N.Y.S.3d 356).
The defendants' remaining contentions are without merit.
BALKIN, J.P., CHAMBERS, ROMAN and HINDS–RADIX, JJ., concur.
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