O'Shea v. Buffalo Medical Group, P.C.

Green and Gorski, JJ.

(dissenting). We respectfully dissent, and would affirm. We agree with the majority that the affidavit of Blaze Sekovski, M.D. (defendant) was sufficient to establish that his administration of the stress test to Timothy D. O’Shea (plaintiff) was consistent with the applicable standard of care. Plaintiffs, however, do not dispute that defendant’s administration of the test and interpretation of the result were consistent with the applicable standard of care. Rather, plaintiffs allege that defendant was negligent in making an incorrect diagnosis and giving erroneous advice to plaintiff. Plaintiffs further allege that it was foreseeable that plaintiff would, and did in fact, rely on defendant’s advice and that, as a result, the correct diagnosis of plaintiffs cancerous brain tumor was delayed (see generally Heller v Peekskill Community Hosp., 198 AD2d 265, 266 [1993]; Hickey v Travelers Ins. Co., 158 AD2d 112, 115 [1990]). Defendants’ motion for summary judgment dismissing the complaint thus was properly denied insofar as it sought summary judgment dismissing the complaint against defendant because defendants’ submissions fail even to address those allegations (see generally Moreira v City of New York, 4 AD3d 311 [2004]). We note in particular that, with respect to the issue whether the delay in diagnosis caused injury to plaintiff, defendants failed to meet their initial burden of establishing *1142their entitlement to judgment as a matter of law (see Schaub v Cooper, 34 AD3d 268, 271 [2006]). We thus need not consider the sufficiency of plaintiffs’ opposing papers with respect to that issue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Present—Scudder, P.J., Hurlbutt, Peradotto, Green and Gorski, JJ.