Brown v. LaFontaine-Rish Medical Associates

—Order, Supreme Court, Bronx County (Michael DeMarco, J.), entered May 31, 2001, which denied the motion of defendant Andrew Pastewski, M.D., for summary judgment dismissing the complaint as against him, unanimously affirmed, without costs.

*168Dr. Pastewski seeks summary judgment dismissing this medical malpractice and wrongful death act as against him upon the ground that he had no involvement in the liposuction procedure during which plaintiffs decedent expired. In support of his summary judgment motion, Dr. Pastewski submitted his own affidavit and deposition testimony, as well as that of defendant Dr. Ron, who was listed on the operative report as “consulting doctor” for the procedure. This evidence purporting to establish that Dr. Pastewski was not present and had no role in the procedure was contradicted by medical records in which Dr. Pastewski is identified in three places as the surgeon who performed the procedure and whose signature allegedly appears on these records. The conflicting evidence raises material and triable issues of fact and thus precludes an award of summary judgment (see, Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Concur—Williams, P.J., Tom, Saxe, Friedman and Marlow, JJ.