Melendez v Dorville
2012 NY Slip Op 02042 [93 AD3d 528]
March 20, 2012
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 25, 2012


Angelina Melendez, an Infant, by Her Mother and Natural Guardian, et al., Respondents,
v
Maria Dorville et al., Appellants.

[*1] Ecket Seamans Cherin & Mellott, LLC, White Plains (Mark E. Thabet of counsel), for appellants.

Trolman, Glaser & Lichtman, P.C., New York (Michael T. Altman of counsel), for respondents.

Order, Supreme Court, Bronx County (Patricia A. Williams, J.), entered February 23, 2011, which denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendants failed to come forward with evidence to show that none of the injuries alleged in the bill of particulars could have been proximately caused or exacerbated by the infant plaintiff's elevated blood lead levels (see Bygrave v New York City Hous. Auth., 65 AD3d 842, 846-847 [2009]). In any event, plaintiffs raised triable issues of fact as to the cause and extent of the infant's injuries. Contrary to defendants' contention, the affidavits by plaintiffs' experts were not speculative. The experts' conclusions were soundly based upon their personal examinations, administration of objective tests, and explicit consideration of the infant's records (see Vazquez v New York City Hous. Auth., 79 AD3d 623 [2010]; Zapata v Sutton, 84 AD3d 521 [2011]).

The motion court made no determination of the credibility of defendants' expert. It simply considered the bases for his opinion, and determined that the experts' conflicting opinions presented triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]; Powell v HIS Contrs., Inc., 75 AD3d 463, 465 [2010]). Moreover, as the nonmovants, plaintiffs are entitled to all the reasonable inferences to be drawn in their favor (see [*2]Gulf Ins. Co. v Transatlantic Reins. Co., 69 AD3d 71, 86 [2009]).

We have considered defendants' remaining contentions and find them unavailing. Concur—Andrias, J.P., Sweeny, Moskowitz, Freedman and Manzanet-Daniels, JJ.