Vito v. North Medical Family Physicians, P.C.

Hurlbutt, J.P., and Smith, J. (dissenting in part).

We respectfully dissent in part. The majority concludes that Supreme *1041Court erred in granting in its entirety defendants’ CPLR 4401 motion for a directed verdict at the close of plaintiffs proof. In our view, however, the court properly granted that part of defendants’ motion with respect to plaintiffs claim of malpractice based on the failure of defendant Louis Bonavita, Jr., M.D. to refer plaintiff to a specialist between the years 1996 and 2000. Plaintiff’s expert medical witness testified that Dr. Bonavita “deviated from the prevailing…