Virginia Montemurro, an Infant, by Her Parent and Natural Guardian, Elizabeth Montemurro, et al., Respondents, v. Jack M. Dodick et al., Appellants, et al., Defendant

Virginia Montemurro, an Infant, by Her Parent and Natural Guardian, Elizabeth Montemurro, et al., Respondents, v Jack M. Dodick et al., Appellants, et al., Defendant. [MAJORITY] —In an action to recover damages for medical malpractice, etc., the defendants Jack M. Dodick, Thomas A. Poole and Carl V. Fasano appeal from an order of the Supreme Court, Suffolk County (Gowan, J.), entered March 7, 1989, which denied their motion to dismiss those portions of the plaintiffs’ second amended verified complaint which seek punitive damages against them. Ordered that the order is affirmed, with costs. We find that the Supreme Court appropriately treated the motion to dismiss as one for partial summary judgment at the request of the parties (see, Mihlovan v Grozavu, 72 NY2d 506). Moreover, the court properly denied the motion, as triable issues of fact exist regarding whether the conduct of the appellants was of such a nature as to warrant an award of punitive damages (see, e.g., Mullany v Eiseman, 125 AD2d 457). Sullivan, J. P., Harwood, Balletta and Rosenblatt, JJ., concur.