J.A.D. v. Arevalo , 149 A.D.3d 664 ( 2017 )

J.A.D. v Arevalo (2017 NY Slip Op 03269)

J.A.D. v Arevalo

2017 NY Slip Op 03269

Decided on April 27, 2017

Appellate Division, First Department

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 April 27, 2017
Sweeny, J.P., Acosta, Renwick, Moskowitz, Kahn, JJ.

3856

[*1]J.A.D., an Infant by His Mother 20922/13E and Natural Guardian, etc., et al., Plaintiffs-Respondents, —

v

Ronald Paul Arevalo, M.D., Defendant-Appellant, St. Barnabas Hospital, et al., Defendants.

Mauro Lilling Naparty, LLP, Woodbury (Gregory A. Cascino of counsel), for appellant.

The Fitzgerald Law Firm, P.C., Yonkers (John M. Daly of counsel), for respondent.

Order, Supreme Court, Bronx County (Stanley Green, J.), entered September 3, 2015, which, insofar as appealed from, denied the motion of defendant Ronald Paul Arevalo, M.D. for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

The record, which includes conflicting expert affidavits, presents triable issues as to whether defendant Arevalo deviated from good and accepted medical practice, and whether such alleged

deviation proximately caused the infant plaintiff's injuries (see generally Dallas-Stephenson v Waisman, 39 AD3d 303, 306-307 [1st Dept 2007]). Plaintiff's expert neonatologist sufficiently raised questions as to whether Arevalo failed to timely diagnose the infant plaintiff's abdominal condition and obtain a surgical consult (see Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Cregan v Sachs, 65 AD3d 101, 108-109 [1st Dept 2009]). Although surgery on the infant plaintiff did not occur for 36 hours following the infant's transfer to another facility, this does not warrant a different determination (see Bradley v Soundview Healthcenter, 4 AD3d 194 [1st Dept 2004]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 27, 2017

CLERK