Bramble v. Sears, Roebuck & Co.

172 A.D.2d 793, 570 N.Y.S.2d 981, 1991 N.Y. App. Div. LEXIS 5410

Opinion

In an action to recover damages for personal injuries and damage to personal property, etc., the defendant appeals from an order of the Supreme Court, Kings County (Held, J.), dated October 13, 1989, which denied its motion for summary judgment.

Ordered that the order is reversed, with costs, and the matter is remitted to the Supreme Court, Kings County, for a new determination in accordance herewith; and it is further,

Ordered that the plaintiffs, within 30 days after service upon them of a copy of this decision and order, with notice of entry, shall serve upon the defendant and file with the Supreme Court, Kings County, copies of their unredacted expert affidavits.

Since it is readily apparent from the record that the plaintiffs mistakenly believed in good faith that they were not required to name their experts or their qualifications (cf., Rubenstein v Columbia Presbyt. Med. Center, 139 Misc 2d 349), we remit the matter to the Supreme Court in order to allow the plaintiffs an opportunity to resubmit the affidavits from " 'named expert[s] which shall set forth [their] qualifications as * * * expert[s] and the evidentiary facts upon which [they base their] opinion’ ” (Maust v Arseneau, 116 AD2d 1012, , quoting from Coley v Michelin Tire Corp., 88 AD2d 651). Lawrence, J. P., Eiber, Balletta and Ritter, JJ., concur.