Banks v. Barkoukis

In an action to recover damages for personal injuries, the defendant George A. Barkoukis appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Hentel, J.), dated May 9, 1990, as denied that branch of his cross motion which was for summary judgment dismissing the complaint insofar as it is asserted against him.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff suffered injury to her face and eye when a nurse knocked down an intravenous pole causing it to fall upon her as she lay on an operating table. The appellant was present in the operating room at the time of the incident, preparing to perform surgery on the plaintiff.

*604Bearing in mind that upon an appeal from an order denying a motion for summary judgment, issue finding rather than issue determination is the court’s primary function (see, Ammar v du Pont de Nemours Co., 175 AD2d 92), we find, contrary to the appellant’s contentions, that the record and the affidavit of the plaintiff’s expert raise material issues regarding the adequacy of the appellant’s care and his supervision of the plaintiff and the operating room personnel which cannot presently be resolved as a matter of law (see, Jankowski v Sherman, 137 AD2d 492). The denial of summary judgment was therefore appropriate (see, Zuckerman v City of New York, 49 NY2d 557). Harwood, J. P., Eiber, Ritter and Copertino, JJ., concur.