Opinion
2013-02-5
Ethel J. GRIFFIN, as Public Administrator of the New York County Estate of Gary Lebow, etc., Plaintiff–Respondent, v. Franco P. CERABONA, M.D., Defendant–Appellant, Andrew Merola, M.D., et al., Defendants.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellant. Law Offices of Joseph M. Lichtenstein, P.C., Mineola (Joseph L. Ciaccio of counsel), for respondent.
Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellant. Law Offices of Joseph M. Lichtenstein, P.C., Mineola (Joseph L. Ciaccio of counsel), for respondent.
FRIEDMAN, J.P., DeGRASSE, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.
Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 21, 2009, which, insofar as appealed from, denied the motion of defendant Franco P. Cerabona, M.D. for summary judgment dismissing the cause of action alleging medical malpractice as against him, unanimously affirmed, without costs.
The record presents triable issues of fact as to whether defendantphysician committed malpractice by performing spinal surgery on plaintiff's decedent. In response to the evidence submitted by defendant showing that the surgery was appropriately performed, plaintiff submitted an affidavit from an expert stating that defendant departed from good and accepted medical practice by performing the spinal fusion surgery that was contraindicated for the decedent and that such departure was a proximate cause of the decedent's injuries. Plaintiff's expert reviewed the decedent's medical records and films and detected no evidence of spinal instability. The expert further noted the numerous risk factors involved with the decedent undergoing the surgery and concluded that it was likely to fail. Such conflicting evidence warranted the denial of summary judgment in defendant's favor since “[r]esolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury” ( Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 25, 888 N.Y.S.2d 479 [1st Dept. 2009] ).