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33 A.D.3d 855

Geller v. Waldbaum

Appellate Division of the Supreme Court of the State of New York · decided 2006-10-24

Decided 2006-10-24

¶1In an action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant Elliot Pellman appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Ayres, J.), dated January 9, 2006, as denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

¶2Ordered that the order is affirmed insofar as appealed from, with costs.

¶3The defendant Elliot Pellman met his burden of establishing his prima facie entitlement to judgment as a matter of law by submitting the affidavit of a medical expert opining, to a reasonable degree of medical certainty, that he acted within good and accepted standards of medical practice in his care and treat*856ment of the decedent (see Mandel v New York County Pub. Adm’r, 29 AD3d 869 [2006]; Wasserman v Staten Is. Radiological Assoc., 2 AD3d 713 [2003]).

¶4However, in opposition, the plaintiffs adduced sufficient evidence to raise a triable issue of fact as to whether Pellman’s treatment of the decedent departed from good and accepted standards of medical practice (see Mandel v New York County Pub. Adm’r, supra; Maggio v Werner, 213 AD2d 883 [1995]; Tiernan v Heinzen, 104 AD2d 645 [1984]). Accordingly, Pellman’s motion for summary judgment was properly denied. Florio, J.P, Goldstein, Luciano and Lunn, JJ., concur.

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