Opinion
362 CA 21-00781
04-29-2022
Teri ELLIS, Plaintiff-Respondent, v. Nata PARNES, M.D., Tri-County Orthopedics and Carthage Area Hospital, Inc., Defendants-appellants.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS. SNYDER LAW FIRM, PLLC, SYRACUSE (DAVID B. SNYDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS.
SNYDER LAW FIRM, PLLC, SYRACUSE (DAVID B. SNYDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this medical malpractice action, defendants appeal from an order to the extent that it denied their motion for summary judgment insofar as it sought the dismissal of the first cause of action. We affirm. Although plaintiff acknowledges that defendants met their initial burden on the motion, we conclude that, contrary to defendants’ contention, plaintiff raised a triable issue of fact regarding the first cause of action in opposition to the motion (see Mason v. Adhikary , 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691 [4th Dept. 2018] ). Defendants failed to preserve their further contention that defendant Tri-County Orthopedics lacks capacity to be sued (see Fischer v. Chevra Machziket H'Shechuna, Inc. , 295 A.D.2d 227, 228, 743 N.Y.S.2d 716 [1st Dept. 2002] ; cf. Admiral Ins. Co. v. Marriott Intl., Inc. , 67 A.D.3d 526, 526, 887 N.Y.S.2d 849 [1st Dept. 2009] ). Defendants’ remaining contention does not warrant modification or reversal of the order insofar as appealed from.