CHERYL HAAS AND WILLIAM HAAS PLAINTIFFS RESPONDENTS v. THOMPSON HOSPITAL INC THOMPSON HEALTH SYSTEM INC THOMPSON FOUNDATION INC THOMPSON CONTINUING CARE CENTER INC ELIZABETH DUBOVSKY JOHN NICHOLS DEFENDANTS APPELLANTS ET AL DEFENDANTS

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

CHERYL A. HAAS AND WILLIAM K. HAAS, PLAINTIFFS–RESPONDENTS, v. F.F. THOMPSON HOSPITAL, INC., F.F. THOMPSON HEALTH SYSTEM, INC., F.F. THOMPSON FOUNDATION, INC., F.F. THOMPSON CONTINUING CARE CENTER, INC., ELIZABETH DUBOVSKY, M.D., JOHN NICHOLS, M.D., DEFENDANTS–APPELLANTS, ET AL., DEFENDANTS.

CA 11–00275

Decided: July 01, 2011

PRESENT:  CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ. HIRSCH & TUBIOLO, P.C., ROCHESTER (CHRISTOPHER S. NOONE OF COUNSEL), FOR DEFENDANTS–APPELLANTS. DIBBLE & MILLER, P.C., ROCHESTER (JOHN J. JAKUBEK OF COUNSEL), FOR PLAINTIFFS–RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Defendants-appellants (defendants) appeal from an order that, inter alia, denied those parts of their motion for summary judgment dismissing the complaint against them in this medical malpractice action.   We affirm.   Even assuming, arguendo, that defendants met their initial burden on the motion, we conclude that plaintiffs raised triable issues of fact sufficient to defeat the motion by submitting the affidavit of their medical expert (see Selmensberger v. Kaleida Health, 45 AD3d 1435, 1436;  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).  “The conflicting opinions of the experts for plaintiff[s] and defendant[s] with respect to ․ defendant[s'] alleged deviation[s] from the accepted standard of medical care [and whether those alleged deviations affected the extent of the injuries sustained by plaintiff Cheryl A. Haas] present credibility issues that cannot be resolved on a motion for summary judgment” (Ferlito v. Dara, 306 A.D.2d 874;  see Gedon v. Bry–Lin Hosps., 286 A.D.2d 892, 894, lv denied 98 N.Y.2d 601).

Patricia L. Morgan

Clerk of the Court