Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on February 5, 2013
Friedman, J.P., DeGrasse, Richter, Abdus-Salaam, Feinman, JJ.
Order, Supreme Court, New York County (Joan B. Carey, J.), entered December 21, 2009, which, insofar as appealed from, denied the motion of defendant Franco P. Cerabona, M.D. for summary judgment dismissing the cause of action alleging medical malpractice as against him, unanimously affirmed, without costs.
The record presents triable issues of fact as to whether defendant physician committed malpractice by performing spinal surgery on plaintiff's decedent. In response to the evidence submitted by defendant showing that the surgery was appropriately performed, plaintiff submitted an affidavit from an expert stating that defendant departed from good and accepted medical practice by performing the spinal fusion surgery that was contraindicated for the decedent and that such departure was a proximate cause of the decedent's injuries. Plaintiff's expert reviewed the decedent's medical records and films and detected no evidence of spinal instability. The expert further noted the numerous risk factors involved with the decedent undergoing the surgery and concluded that it was likely to fail. Such conflicting evidence warranted the denial of summary judgment in defendant's favor since "[r]esolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury" (Frye v Montefiore Med. Ctr., 70 AD3d 15, 25 [1st Dept 2009]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: FEBRUARY 5, 2013
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