Opinion
August 9, 1993
Appeal from the Supreme Court, Richmond County (Sangiorgio, J.).
Ordered that the order is affirmed, with costs.
The plaintiff was admitted to the emergency room of the defendant Aurelia Osborn Fox Memorial Hospital on September 14, 1987, complaining of chest pains and shortness of breath. While in the emergency room, she was examined by the defendant Dr. T.M. Petkov, who ordered, among other tests, chest X-rays. The first radiologist to examine the X-rays, the defendant Dr. Danielski, reported that he found no abnormalities in the X-rays. Dr. Petkov prescribed some medicine and sent the plaintiff home. Sometime the next morning, the defendant Dr. McChesney, also a radiologist, also examined the X-rays and prepared a report which indicated the possibility of a tumor. However, other than placing the report in the plaintiff's file, Dr. McChesney did not personally inform the other two defendant doctors of his findings. Approximately two years later, the plaintiff was diagnosed as having Hodgkin's disease. The plaintiff commenced this action in September 1989, and within five months thereafter, and prior to any discovery, Dr. McChesney moved for summary judgment in his favor. The Supreme Court denied the motion pursuant to CPLR 3212 (f) without prejudice to renewal after the completion of discovery.
We agree with the Supreme Court's determination to deny the motion with leave to renew upon the completion of discovery. CPLR 3212 (f) provides, in relevant part, that "[s]hould it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion". The papers submitted in opposition to Dr. McChesney's motion indicated, inter alia, the existence of possible questions of fact as to the policies of the hospital with respect to the reporting of X-ray results by a radiologist and as to Dr. McChesney's obligations pursuant to those policies. Sullivan, J.P., Balletta, Ritter and Pizzuto, JJ., concur.