Opinion
512 CA 18–02224
05-03-2019
Eileen A. GARDINER and Donald T. Gardiner, Plaintiffs–Appellants, v. David R. HALLERAN, M.D., Individually and as Agent, Officer and/or Employee of Colon Rectal Associates of Central New York, LLP, et al., Defendants, Lawrence C. Calabrese, M.D., Individually and as an Agent, Officer and/or Employee of St. Joseph's Imaging Associates, PLLC, and St. Joseph's Imaging Associates, PLLC, Defendants–Respondents.
PORTER NORDBY HOWE LLP, SYRACUSE (ERIC C. NORDBY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS. SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (CHRISTOPHER F. DEFRANCESCO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PORTER NORDBY HOWE LLP, SYRACUSE (ERIC C. NORDBY OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (CHRISTOPHER F. DEFRANCESCO OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: SMITH, J.P., CARNI, DEJOSEPH, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion of defendants-respondents is denied, and the complaint against defendants-respondents is reinstated.
Memorandum: Plaintiffs commenced this medical malpractice action in connection with a surgical procedure performed upon plaintiff Eileen A. Gardiner. Supreme Court erred in granting the motion of defendants-respondents (defendants) for summary judgment dismissing the complaint against them. Even assuming, arguendo, that defendants met their initial burden on their motion, we agree with plaintiffs that their medical expert's affidavit raised triable issues of fact in opposition (see Fay v. Satterly, 158 A.D.3d 1220, 1221, 70 N.Y.S.3d 268 [4th Dept. 2018] ). Where, as here, the "nonmovant's expert affidavit ‘squarely opposes’ the affirmation of the moving parties' expert, the result is ‘a classic battle of the experts that is properly left to a jury for resolution’ " ( Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018] ).