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GARONE v. ROBERTS' TRADE SCH.

47 A.D.2d 306 (1975)

Robert Garone et al., Appellants, v. Roberts' Technical and Trade School, Inc., Respondent-Appellant, and Leonard Buder et al., as Coexecutors of Alexander Dubinsky, Deceased, et al., Respondents

Appellate Division of the Supreme Court of the State of New York, First Department.

April 3, 1975

Attorney(s) appearing for the Case

Morris Zweibel of counsel (Leon Segan with him on the brief; Segan, Culhane, Nemerov & Geen, P. C., attorneys), for appellants.

William F. McNulty of counsel (Anthony J. McNulty with him on the brief; Daniel J. Coughlin, attorney), for Roberts' Technical and Trade School, Inc., respondent-appellant.

Alexander M. Selkirk, Jr., of counsel (Furey & Mooney, attorneys), for Presbyterian Hospital, respondent.

James Borden Rosenblum of counsel (Martin, Clearwater & Bell, attorneys), for George R. Merriam, Jr., respondent.

Norman Bard of counsel (McAloon, Friedman, Schiavetti, Malang & Carroll, attorneys), for Leonard Buder and another, respondents.

MURPHY and LUPIANO, JJ., concur with CAPOZZOLI, J.; STEVENS, P. J., and LANE, J., dissent in an opinion by STEVENS, P. J.

CAPOZZOLI, J.

An examination of this record convinces us that the action against the defendant, Dr. George R. Merriam, Jr., should not have been dismissed by the trial court at the close of the entire case. A factual issue was presented as to whether this defendant was responsible in damages for his failure to obtain an informed consent for the operation.

"It is axiomatic that where there is a conflict...

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