Ellis v. Parnes

Ellis v Parnes (2022 NY Slip Op 02919) Ellis v Parnes 2022 NY Slip Op 02919 Decided on April 29, 2022 Appellate Division, Fourth 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 29, 2022 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department PRESENT: WHALEN, P.J., SMITH, PERADOTTO, NEMOYER, AND WINSLOW, JJ. 362 CA 21-00781 [*1]TERI ELLIS, PLAINTIFF-RESPONDENT, v NATA PARNES, M.D., TRI-COUNTY ORTHOPEDICS AND CARTHAGE AREA HOSPITAL, INC., DEFENDANTS-APPELLANTS. SMITH SOVIK KENDRICK & SUGNET, P.C., SYRACUSE (ANTHONY R. BRIGHTON OF COUNSEL), FOR DEFENDANTS-APPELLANTS. SNYDER LAW FIRM, PLLC, SYRACUSE (DAVID B. SNYDER OF COUNSEL), FOR PLAINTIFF-RESPONDENT. Appeal from an order of the Supreme Court, Jefferson County (James P. McClusky, J.), entered May 11, 2021. The order, insofar as appealed from, denied in part the motion of defendants for summary judgment. It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this medical malpractice action, defendants appeal from an order to the extent that it denied their motion for summary judgment insofar as it sought the dismissal of the first cause of action. We affirm. Although plaintiff acknowledges that defendants met their initial burden on the motion, we conclude that, contrary to defendants' contention, plaintiff raised a triable issue of fact regarding the first cause of action in opposition to the motion (see Mason v Adhikary, 159 AD3d 1438, 1439 [4th Dept 2018]). Defendants failed to preserve their further contention that defendant Tri-County Orthopedics lacks capacity to be sued (see Fischer v Chevra Machziket H'Shechuna, 295 AD2d 227, 228 [1st Dept 2002]; cf. Admiral Ins. Co. v Marriott Intl., Inc., 67 AD3d 526, 526 [1st Dept 2009]). Defendants' remaining contention does not warrant modification or reversal of the order insofar as appealed from. Entered: April 29, 2022 Ann Dillon Flynn Clerk of the Court