MARIA FEDERCZYK, PLAINTIFF-APPELLANT,V GARDEN GATE HEALTH CARE FACILITY AND GARDEN GATEHEALTH CARE FACILITY, LLC,DEFENDANTS-RESPONDENTS.BROWN CHIARI LLP, BUFFALO (THERESA M. WALSH OF COUNSEL), FORPLAINTIFF-APPELLANT.HARRIS BEACH PLLC, BUFFALO (JASON T. BRITT OF COUNSEL), FORDEFENDANTS-RESPONDENTS.Appeal from an order of the Supreme Court, Erie County (Donna M.Siwek, J.), entered March 9, 2017. The order, insofar as appealedfrom, granted that part of defendants’ motion seeking summary judgmentdismissing the complaint to the extent that the complaint, asamplified by the supplemental bill of particulars, alleges thatdefendants’ alleged negligence was a proximate cause of plaintiff’sSeptember 9, 2013 fall.It is hereby ORDERED that the order insofar as appealed from isunanimously reversed on the law without costs, that part of the motionwith respect to the 2013 injury is denied and the complaint, asamplified by the supplemental bill of particulars, is reinstated tothat extent.Memorandum: Plaintiff commenced this action seeking damagesarising from the alleged negligent care and treatment she receivedwhile she was an inpatient at defendant Garden Gate Health CareFacility (Garden Gate) in November 2008. Plaintiff alleged thatdefendants’ care and treatment caused her to develop foot soresrequiring hospitalization in December 2008 as well as subsequenttreatment because the foot sores never fully resolved, and she allegedthat she fractured her right femur when she tripped and fell in 2013as a result of the continuing treatment related to her foot sores.Defendants moved for summary judgment dismissing the complaint, andSupreme Court granted the motion in part, dismissing the complaint, asamplified by the supplemental bill of particulars, to the extent thatit related to the 2013 injury and to the extent that plaintiff soughtpunitive damages. Plaintiff, as limited by her brief, challenges onlythat part of the order concerning the 2013 injury.We agree with plaintiff that the court erred in granting thatpart of defendants’ motion with respect to the 2013 injury. Althoughdefendants met their initial burden by submitting an expert’saffidavit establishing that any negligence by defendants was not aproximate cause of the 2013 fall, plaintiff raised triable issues offact to defeat the motion (see Selmensberger v Kaleida Health, 45 AD3d1435, 1435-1436 [4th Dept 2007];see generallyZuckerman v City of NewYork, 49 NY2d 557, 562 [1980]). Plaintiff submitted the affidavit ofa physician who averred that the foot sores developed while she was aninpatient at Garden Gate, as a result of defendants’ negligent careand treatment. Moreover, he averred that plaintiff underwentcontinuous treatment due to those injuries and it was that treatmentthat ultimately caused the fall and subsequent injuries in 2013. Wethus conclude that “[t]he motion papers presented a credibility battlebetween the parties’ experts, and issues of credibility are properlyleft to a jury for its resolution” of those issues (Barbuto v WinthropUniv. Hosp., 305 AD2d 623, 624 [2d Dept 2003]).Entered: June 8, 2018 Mark W. BennettClerk of the Court
