ELLEN BROOKS, plf-res, v. SOMERSET SURGICAL ASSOCIATES, ET AL., def-ap

10198. ELLEN BROOKS, plf-res, v. SOMERSET SURGICAL ASSOCIATES, ET AL., def-ap — Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for ap — Law Offices of Frederick W. Altschuler, East Meadow (Daniel P. Trunk of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 15, 2011, which, to the extent appealed from as limited by the briefs, denied defendants' motion for summary judgment dismissing the complaint as against defendant Dr. Norman Sohn, M.D., and to dismiss the action pursuant to CPLR 3215(c) as against defendant Somerset Surgical Associates, P.C., unanimously affirmed, with costs.

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10198. ELLEN BROOKS, plf-res, v. SOMERSET SURGICAL ASSOCIATES, ET AL., def-ap — Martin Clearwater & Bell LLP, New York (Barbara D. Goldberg of counsel), for ap — Law Offices of Frederick W. Altschuler, East Meadow (Daniel P. Trunk of counsel), for res — Order, Supreme Court, New York County (Alice Schlesinger, J.), entered September 15, 2011, which, to the extent appealed from as limited by the briefs, denied defendants’ motion for summary judgment dismissing the complaint as against defendant Dr. Norman Sohn, M.D., and to dismiss the action pursuant to CPLR 3215(c) as against defendant Somerset Surgical Associates, P.C., unanimously affirmed, with costs.

Plaintiff alleges she was injured when she fell from an operating table while under anesthesia for procedures being performed at defendants’ medical facility. Although Dr. Sohn submitted an affidavit stating he was not present at the moment of plaintiff’s fall, his motion for summary judgment was properly denied as premature, because essential facts concerning the cause of plaintiff’s accident and the relationship between Dr. Sohn and defendant Somerset are exclusively within the possession of defendants and might well be disclosed by examination before trial or through cross-examination (see CPLR 3212[f]; Baldasano v. Bank of N.Y., 199 AD2d 184, 185 [1st Dept 1993]). Moreover, the existing record, including the consent form indicating that plaintiff would be treated only by Dr. Sohn, raises questions of fact, which preclude summary judgment (see Aetna Cas. & Sur. Co. v. Island Transp. Corp., 233 AD2d 157, 158 [1st Dept 1996]; Greenidge v. HRH Constr. Corp., 279 AD2d 400, 403 [1st Dept 2001]). Further, Dr. Sohn’s affidavit did not address his potential liability as shareholder of a professional corporation, responsible for supervision of the office staff and for implementation of office policy and procedure (see Yaniv v. Taub, 256 AD2d 273, 274-275 [1st Dept 1998]).

ELLEN BROOKS, plf-res, v. SOMERSET SURGICAL ASSOCIATES, ET AL., def-ap

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