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Larsen v. Banwar

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


February 11, 2010

KIMBERLY M. LARSEN, APPELLANT,
v.
NITIN S. BANWAR, M.D., ET AL., RESPONDENTS.

Appeal from an order of the Supreme Court, Monroe County (Thomas A. Stander, J.), entered June 19, 2008 in a medical malpractice action. The order granted the motion of defendants for summary judgment dismissing the complaint.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 31, 2010

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is denied, and the complaint is reinstated.

Memorandum

Plaintiff commenced this action seeking damages for injuries she allegedly sustained as the result of defendants' medical malpractice. We agree with plaintiff that Supreme Court erred in granting defendants' motion seeking summary judgment dismissing the complaint. Where, as here, an expert's affidavit fails to address each of the specific factual claims of negligence raised in plaintiff's bill of particulars, that affidavit is insufficient to support a motion for summary judgment as a matter of law (see Grant v Hudson Val. Hosp. Ctr., 55 AD3d 874 [2008]; Larsen v Loychusuk, 55 AD3d 560 [2008]). Thus, defendants' motion should have been denied, regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Grant, 55 AD3d at 875).

Present---Smith, J.P., Peradotto, Carni, Pine and Gorski, JJ.

20100211

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