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Golub v. Sutton3/26/2001
Golub Corp., 267 AD2d 526).
All of the appellants made a prima facie showing of entitlement to judgment as a matter of law in support of their motion and cross motions for summary judgment. However, the affidavit of the plaintiff's expert submitted in opposition was sufficient to raise issues of fact as to whether the 1996 surgery was medically indicated, whether the plaintiff's bladder was perforated during the unsuccessful attempt to insert the catheter, and whether other departures from good medical practice contributed to the development of a stricture or stenosis which, in turn, caused or contributed to the symptoms which later necessitated the second surgery. There is, therefore, an issue of fact as to the potential liability of Dr. Katz and Dr. Sutton. The affidavit of the plaintiff's expert was, however, insufficient to raise any issue of fact as to whether Dr. Merker committed any malpractice during the post-operative phase of treatment. Therefore, Dr. Merker was entitled to summary judgment dismissing the complaint insofar as asserted against him. Since the only theory of liability pleaded in the amended verified complaint against Long Island Medical and Gastroenterology Associates, P.C., is based on the alleged negligence of Dr. Merker, it was also entitled to summary judgment dismissing the complaint insofar as asserted against it.
BRACKEN, P.J., RITTER, GOLDSTEIN and FEUERSTEIN, JJ., concur.
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