Ferlito v. Dara — 306 A.D.2d 874

Majority

p. 874

Joan H. Ferlito, Individually and as Administratrix of the Estate of James J. Ferlito, Jr., Deceased, Respondent, v Tanvir M. Dara, M.D., et al., Defendants, and John D. Urschel, M.D., Appellant.

[761 NYS2d 902]

—Appeal from that part of an order of Supreme Court, Erie County (Martoche, J.), entered August 2, 2002, that denied the motion of defendant John D. Urschel, M.D. seeking summary judgment dismissing the amended complaint against him.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed with costs.

Memorandum: Supreme Court properly denied the motion of John D. Urschel, M.D. (defendant) seeking summary judgment dismissing the amended complaint against him. The conflicting opinions of the experts for plaintiff and defendant with respect to causation and defendant’s alleged deviation from the accepted standard of medical care present credibility issues that cannot be resolved on a motion for summary judgment (see Gedon v Bry-Lin Hosps., 286 AD2d 892 , 894 [2001], lv denied 98 NY2d 601 [2002]). Present — Pine, J.P., Hurlbutt, Gorski, Lawton and Hayes, JJ.