BARBUTO v. Robert Klein, et al., Appellants.

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

Andrea BARBUTO, etc., Respondent, v. WINTHROP UNIVERSITY HOSPITAL, et al., Defendants, Robert Klein, et al., Appellants.

Decided: May 27, 2003

DAVID S. RITTER, J.P., NANCY E. SMITH, SONDRA MILLER and THOMAS A. ADAMS, JJ. Law Offices of Charles X. Connick, PLLC, Mineola, N.Y. (Barbara A. Myers of counsel), for appellants. Andrew Rosner, Garden City, N.Y. (David Shumer of counsel), for respondent.

In an action to recover damages for medical malpractice, the defendants Robert Klein and Steven Geier appeal from so much of an order of the Supreme Court, Nassau County (Burke, J.), dated October 16, 2002, as granted the plaintiff's motion for leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them, and, upon renewal, vacated its prior order, dated July 23, 2002, granting the motion for summary judgment, and denied the motion.

ORDERED that the order is affirmed insofar as appealed from, with costs.

Contrary to the appellants' contention, the Supreme Court providently exercised its discretion in granting the plaintiff leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them.   Although the supplemental affirmation of the plaintiff's expert adduced upon renewal was not based upon new facts, the court had the discretion to grant leave to renew upon facts known to the plaintiff at the time of the original motion (see Oestreich v. Boyd, 300 A.D.2d 375, 751 N.Y.S.2d 413).   Moreover, the court providently exercised its discretion to consider the supplemental affirmation which was belatedly served by the plaintiff in sur-reply on the appellants' original motion (see Pena v. Weissman, 293 A.D.2d 659, 741 N.Y.S.2d 110).

Upon renewal, the Supreme Court properly denied the appellants' motion for summary judgment.   In opposition to the appellants' prima facie showing, the plaintiff adduced sufficient evidence to raise a triable issue of fact, inter alia, as to whether the appellants' alleged failure to diagnose the ruptured splenic artery aneurysm of the plaintiff's mother was a departure from appropriate standards of care, which increased the harm to the plaintiff in utero, caused by oxygen deprivation (see Jump v. Facelle, 275 A.D.2d 345, 346, 712 N.Y.S.2d 162;  see also Cavlin v. New York Medical Group, 286 A.D.2d 469, 730 N.Y.S.2d 337).   The motion papers presented a credibility battle between the parties' experts, and issues of credibility are properly left to a jury for its resolution (see Stoves v. City of New York, 293 A.D.2d 666, 741 N.Y.S.2d 269;  Halkias v. Otolaryngology-Facial Plastic Surgery Assocs., 282 A.D.2d 650, 724 N.Y.S.2d 432).   In light of the conflicting medical expert opinions, upon renewal, the court properly denied the appellants' summary judgment motion (see Zarzana v. Sheepshead Bay Obstetrics Gynecology, 289 A.D.2d 570, 735 N.Y.S.2d 627;  Bennett v. Knipfing, 262 A.D.2d 260, 692 N.Y.S.2d 403;  Weissman v. Wider, 235 A.D.2d 474, 652 N.Y.S.2d 1006).

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