BRADFORD v. Raj Murali, Defendant-Appellant.

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

Nancy BRADFORD, Plaintiff-Respondent, v. Bruce ZABLOW, et al., Defendants, Raj Murali, Defendant-Appellant.

Decided: June 18, 2002

NARDELLI, J.P., MAZZARELLI, SULLIVAN, ROSENBERGER and MARLOW, JJ. Brian J. Isaac, for Plaintiff-Respondent. Daniel S. Ratner, for Defendant-Appellant.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 10, 2001, which, to the extent appealed from, denied in part the motion of defendant Raj Murali for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

Plaintiff alleges that she became totally blind in her right eye due, in substantial measure, to defendant Dr. Murali's failure to diagnose correctly, and timely treat, an expanding arterial aneurysm. Although Dr. Murali met his initial burden as a summary judgment movant (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) by submitting a detailed affidavit by a medical expert demonstrating, prima facie, that his treatment of plaintiff's condition had been appropriate under the circumstances, the responding affirmation of plaintiff's expert was adequate to raise material and triable issues of fact (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-325, 508 N.Y.S.2d 923, 501 N.E.2d 572), inter alia, as to whether Dr. Murali competently concluded that plaintiff's aneurysm was sufficiently stable that immediate surgical intervention was unnecessary and that the preferred course of treatment was instead to perform further diagnostic and investigatory tests and procedures.   Contrary to appellant's contention, plaintiff's expert adequately differentiated between the conduct of appellant and the other physician sued.

We have reviewed appellant's remaining contentions and find them unavailing.