This memorandum is uncorrected and subject to revision before
publication in the New York Reports.
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No. 146 SSM 30
Jessica Torres,
Respondent,
v.
Irene G. Cergnul, M.D., et al.,
Appellants,
New York City Health and
Hospitals Corporation, et al.,
Defendants.
Submitted by Steven C. Mandell, for appellants.
Submitted by Carl B. Tegtmeier, for respondent.
* * * * * * * * * * * * * * * * *
On review of submissions pursuant to section 500.11 of the Rules,
order affirmed, with costs, and certified question answered in
the affirmative. Defendants Irene G. Cergnul, M.D. and
Bronx-Lebanon Hospital Center did not preserve for our review
their argument concerning the admissibility of the expert
affidavit submitted by plaintiff in opposition to their motion
for summary judgment. Moreover, defendant Bronx-Lebanon Hospital
Center has abandoned any other argument. On this record, triable
questions of fact preclude summary judgment in favor of
defendants. Chief Judge DiFiore and Judges Rivera, Stein, Fahey,
Wilson and Feinman concur. Judge Garcia dissents and votes to
reverse and answer the certified question in the negative, for
reasons stated in the dissenting opinion by Justice Andrias at
the Appellate Division (146 AD3d 509, at 512-522).
Decided December 12, 2017