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CARMELA VINCINI, ETC., appellant, v. HERBERT A. INSEL, ETC., ET AL., defendants, MICHAEL KRUMHOLZ, ETC., ET AL., respondents.

DECISION ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Michael Krumholz and Lenox Hill Hospital are denied, and the complaint is reinstated against those defendants.

The defendants Dr. Michael Krumholz and Lenox Hill Hospital failed to establish their entitlement to judgment as a matter of law on the basis of the conclusory affidavit of their expert witness ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853; Drago v. King, 283 A.D.2d 603; Allen v. Blum, 212 A.D.2d 562). Therefore, it was unnecessary to reach the sufficiency of the papers submitted in opposition to the motion ( see Winegrad v. New York Univ. Med. Ctr., supra; cf., Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324; Drago v. King, supra; Allen v. Blum, supra).

Accordingly, the Supreme Court erred in granting those branches of the motion which were for summary judgment dismissing the complaint insofar as asserted against Krumholz and Lenox Hill Hospital.

ALTMAN, J.P., SMITH, FRIEDMANN and CRANE, JJ., concur.

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VINCINI v. INSEL
(Nov 3, 2003)