Luthart v. Danesh
Opinion of the Court
— Judgment unanimously reversed on the law with costs, motion denied and complaint against Genesee Memorial Hospital reinstated. Memorandum: Supreme Court properly denied defendant Rathor’s motion for summary judgment. Rathor failed to sustain his burden to set forth evidentiary proof, in admissible form, eliminating any material issue of fact (see, Stevens v Waters, 201 AD2d 872 [decided herewith]; Dix v Pines Hotel, 188 AD2d 1007). The facts relied upon by the movant’s expert in rendering his expert medical opinion conflict with the deposition testimony of defendants Rathor and Danesh. Thus, credibility issues were raised concerning the expert’s opinion that could not be resolved on a summary judgment motion (see, Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338; Mickelson v Babcock, 190 AD2d 1037). Moreover, the expert’s affidavit failed to negate factual issues concerning several of the allegations of malpractice set forth in the bill of particulars.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.