         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
718
CA 11-00275
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS, AND GREEN, JJ.


CHERYL A. HAAS AND WILLIAM K. HAAS,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

F.F. THOMPSON HOSPITAL, INC., F.F. THOMPSON
HEALTH SYSTEM, INC., F.F. THOMPSON FOUNDATION,
INC., F.F. THOMPSON CONTINUING CARE CENTER,
INC., ELIZABETH DUBOVSKY, M.D., JOHN NICHOLS,
M.D., DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


HIRSCH & TUBIOLO, P.C., ROCHESTER (CHRISTOPHER S. NOONE OF COUNSEL),
FOR DEFENDANTS-APPELLANTS.

DIBBLE & MILLER, P.C., ROCHESTER (JOHN J. JAKUBEK OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Ontario County
(William F. Kocher, A.J.), entered June 22, 2010 in a medical
malpractice action. The order, insofar as appealed from, denied those
parts of the motion of defendants F.F. Thompson Hospital, Inc., F.F.
Thompson Health System, Inc., F.F. Thompson Foundation, Inc., F.F.
Thompson Continuing Care Center, Inc., Elizabeth Dubovsky, M.D. and
John Nichols, M.D. seeking summary judgment dismissing the complaint
against them.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendants-appellants (defendants) appeal from an
order that, inter alia, denied those parts of their motion for summary
judgment dismissing the complaint against them in this medical
malpractice action. We affirm. Even assuming, arguendo, that
defendants met their initial burden on the motion, we conclude that
plaintiffs raised triable issues of fact sufficient to defeat the
motion by submitting the affidavit of their medical expert (see
Selmensberger v Kaleida Health, 45 AD3d 1435, 1436; see generally
Zuckerman v City of New York, 49 NY2d 557, 562). “The conflicting
opinions of the experts for plaintiff[s] and defendant[s] with respect
to . . . defendant[s’] alleged deviation[s] from the accepted standard
of medical care [and whether those alleged deviations affected the
extent of the injuries sustained by plaintiff Cheryl A. Haas] present
credibility issues that cannot be resolved on a motion for summary
                                 -2-                          718
                                                        CA 11-00275

judgment” (Ferlito v Dara, 306 AD2d 874; see Gedon v Bry-Lin Hosps.,
286 AD2d 892, 894, lv denied 98 NY2d 601).




Entered:   July 1, 2011                        Patricia L. Morgan
                                               Clerk of the Court
