Order affirmed, with costs.
Appellant Leonard Burson, practicing "by and through" appellant Metropolitan Surgical Group, P.C., has failed to negate, as a matter of law, the inference of negligence that may be drawn as a result of his failure to observe and remove a laparotomy pad, measuring 100 to 144 square inches, which he had placed in the plaintiff's abdomen during surgery (see, Benson v Dean, 232 N.Y. 52, 56; Blackburn v Baker, 227 App. Div. 588). Appellant physician's pretrial deposition arguably raises triable issues of fact with respect to the issue of liability (cf. Freeman v Easy Glider Roller Rink, 114 A.D.2d 436). Under these circumstances, appellants' motion for summary judgment was properly denied, despite the fact that plaintiff did not submit an affidavit of a medical expert (see, Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853). Gibbons, J.P., Bracken, Brown and Lawrence, JJ., concur.