Shichman v. Yasmer
| Decision Date | 29 June 2010 |
| Parties | Helen SHICHMAN, et al., appellants, v. Matthew S. YASMER, respondent. |
| Court | New York Supreme Court — Appellate Division |
74 A.D.3d 1316
Helen SHICHMAN, et al., appellants,
v.
Matthew S. YASMER, respondent.
Supreme Court, Appellate Division, Second Department, New York.
June 29, 2010.
Davidson & Cohen, P.C., Rockville, Centre, N.Y. (Robin Mary Heaney of counsel), for appellants.
Kaufman Borgeest & Ryan, LLP, Valhalla, N.Y. (Jacqueline Mandell of counsel), for respondent.
FRED T. SANTUCCI, J.P., DANIEL D. ANGIOLILLO, THOMAS A. DICKERSON, and LEONARD B. AUSTIN, JJ.
In an action to recover damages for podiatric malpractice, etc., the plaintiffs appeal from (1) an order of the Supreme Court, Nassau County (LaMarca, J.), entered September 8, 2009, which granted the defendant's motion for summary judgment dismissing the complaint, and (2) a judgment of the same court, entered October 2, 2009, which, upon the order, is in favor of the defendant and against them, dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is reversed, on the facts and as an exercise of discretion, with costs, the defendant's motion for summary judgment dismissing the complaint is denied, and the order entered September 8, 2009, is modified accordingly; and it is further,
ORDERED that one bill of costs is awarded to the plaintiffs.
The appeal from the intermediate order must be dismissed because the right of appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a][1] ).
The plaintiff Helen Shichman (hereinafter the plaintiff) presented to the defendant, Dr. Matthew S. Yasmer, a podiatrist, complaining of bunions on both feet. After an initial consultation and acquiring a second opinion, the plaintiff opted to have the defendant perform surgery on both of her feet. Following the surgery, the plaintiff commenced this action. The plaintiff asserted, inter alia, that the manner in which the defendant performed the procedures constituted a departure from accepted podiatric practice, and that, as a result, she suffered injuries. The defendant moved for summary judgment dismissing the complaint. He relied on, among other things, his office notes and medical records as well as an expert affidavit, in which the expert opined that the defendant's performance of the...
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