Bennett v. Knipfing

—In an action to recover damages for wrongful death, etc., the second third-party defendant Peter J. Periconi appeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated August 31, 1998, which denied his motion for summary judgment dismissing the second third-party complaint insofar as asserted against him. Ordered that the order is affirmed, with costs. The Supreme Court properly denied the appellant’s motion for summary judgment dismissing the second third-party complaint insofar as asserted against him. That complaint alleges that the appellant committed acts of medical malpractice which proximately caused the death of the plaintiffs’ decedent. Although the appellant’s medical expert contended that the decedent was so gravely injured in an automobile accident that his life could not have been saved upon his arrival at the hospital, the expert retained by the second third-party plaintiffs described the appellant’s alleged departures from accepted medical practice, and concluded that the decedent would have survived if appropriate measures had been taken. Accordingly, the Supreme Court did not err in finding that an issue of fact existed as to whether the appellant departed from accepted medical practice in his treatment of the decedent, and whether that departure was a proximate cause of his death (see, Weissman v Wider, 235 AD2d 474; Viti v Franklin Gen. Hosp., 190 AD2d 790). Sullivan, J. P., Krausman, Florio and Smith, JJ., concur.