Barone v. Flynn

—In an action to recover damages for medical malpractice, etc., the defendant appeals from an order of the Supreme Court, Orange County (Berry, J.), dated May 25, 2000, which denied his motion for summary judgment dismissing the complaint.

*423Ordered that the order is affirmed, with costs.

The defendant established a prima facie case of entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). In opposition, the plaintiffs submitted the affirmation of the treating orthopedic surgeon, raising a triable issue of fact as to whether the defendant’s alleged failure…