EDELSTEIN v. Jeffrey Goldstein, Defendant.

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

Philip EDELSTEIN, et al., Plaintiffs-Respondents, v. HOSPITAL FOR JOINT DISEASES ORTHOPAEDIC INSTITUTE, Defendant-Appellant, Jeffrey Goldstein, Defendant.

Decided: October 28, 2004

NARDELLI, J.P., SAXE, ELLERIN, GONZALEZ, CATTERSON, JJ. McAloon & Friedman, P.C., New York (Timothy J. O'Shaughnessy of counsel), for appellant. Alexander J. Wulwick, New York, for respondents.

Order, Supreme Court, New York County (Joan B. Carey, J.), entered on or about August 18, 2004, which, in an action for medical malpractice, granted defendant hospital's motion to reargue so much of a prior order, same court and Justice, entered May 26, 2004, as denied its motion for summary judgment with respect to plaintiff's claims based on post-operative care provided after July 9, 1999 at 1:00 A.M., and, upon reargument, adhered to the original determination, unanimously affirmed, without costs.   Appeal from the order entered May 26, 2004, unanimously dismissed, without costs, as academic.

Issues of fact exist as to whether, inter alia, the hospital should have conducted an immediate examination of plaintiff after his fall on July 9, whether the exam it did conduct later that day was properly performed, whether it properly documented and communicated the fall to the attending physician, and whether such alleged acts of malpractice caused plaintiff's nerve root compression and the resulting permanent partial paralysis of his lower extremities.