Opinion
399 CA 20-01361
08-26-2021
CASSIE SMITH, PLAINTIFF-RESPONDENT, v. DANIEL COUSINS, DEFENDANT-APPELLANT.
BENNETT SCHECHTER ARCURI & WILL LLP, BUFFALO (PETER D. CANTONE OF COUNSEL), FOR DEFENDANT-APPELLANT. MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
BENNETT SCHECHTER ARCURI & WILL LLP, BUFFALO (PETER D. CANTONE OF COUNSEL), FOR DEFENDANT-APPELLANT.
MICHAEL STEINBERG, ROCHESTER, FOR PLAINTIFF-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, LINDLEY, TROUTMAN, AND BANNISTER, JJ.
Appeal from an order of the Supreme Court, Monroe County (John J. Ark, J.), entered September 17, 2020. The order denied the motion of defendant for summary judgment dismissing the complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this action in which plaintiff seeks damages for injuries she allegedly sustained as a result of exposure to lead paint as a child, defendant appeals from an order denying his motion for summary judgment dismissing the complaint. We affirm.
Contrary to defendant's contention, he failed to meet his initial burden on the motion. Although defendant submitted an affidavit in which a defense medical expert opined that plaintiff demonstrated an absence of cognitive deficits or mental health issues causally connected to lead exposure (see generally Hamilton v Miller, 23 N.Y.3d 592, 602-603 [2014]), defendant also submitted a report in which plaintiff's expert opined, based on scientific data and plaintiff's medical history, that plaintiff suffered from cognitive deficits that were most likely caused by childhood lead exposure (see generally Parker v Mobil Oil Corp., 7 N.Y.3d 434, 448-449 [2006], rearg denied 8 N.Y.3d 828 [2007]). "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Fonseca v Cronk, 104 A.D.3d 1154, 1155 [4th Dept 2013] [internal quotation marks omitted]). Thus, Supreme Court properly denied defendant's motion regardless of the sufficiency of plaintiff's opposing papers (see generally Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]).
We have considered defendant's remaining contentions and conclude that they are without merit or rendered academic by our determination.