Argued February 13, 2013; decided March 26, 2013

Orsi v Haralabatos, 89 AD3d 997, reversed.

APPEARANCES OF COUNSEL

Silberstein, Awad & Miklos, P.C., Garden City (Dana E. Heitz and Joseph P. Awad of counsel), for appellants.

Phillips Lytle LLP, New York City (Eric M. Kraus and Craig R. Bucki of counsel), for respondents.

Memorandum.

The order of the Appellate Division should be reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks [*2]summary judgment dismissing the medical malpractice cause of action against them should be denied.

We agree with the Appellate Division that there are issues of fact as to whether Haralabatos and Stony Brook departed from the applicable standard of care. The Appellate Division erred, however, in granting summary judgment on the issue of proximate cause. Although the issue was preserved for review by being mentioned in an affirmation of counsel, it was not addressed in the experts' affidavits that Haralabatos and Stony Brook submitted in support of their summary judgment motion. These defendants thus failed to meet their initial burden of showing that any departure from the standard of care was not the proximate cause of plaintiff Keith Orsi's osteomyelitis.

Chief Judge Lippman and Judges Graffeo, Read, Smith, Pigott and Rivera concur.

Order reversed, with costs, and so much of the motion of defendants Haralabatos and Stony Brook Orthopaedic Associates as seeks summary judgment dismissing the medical malpractice cause of action against them denied, in a memorandum.