Kletnieks v. Brookhaven Memorial Ass'n

63 A.D.2d 994

Opinion

In a medical malpractice action, defendant David Spielsinger appeals (by permission), as limited by his brief, from so much of an order of the Supreme Court, Suffolk County, dated September 30, 1977, as denied his motion (1) "[to vacate] the Medical Malpractice Mediation Panel’s finding * * * as it relates to a finding of malpractice” against him and (2) "[to set] the matter down for a new hearing * * * with a pediatrician as the medical panelist”. Order modified by deleting from the decretal paragraph thereof the words "be denied”, and substituting therefor the following: "is granted only to the extent that the finding as it pertains to defendant Spielsinger is vacated and a new panel shall be convened and proceedings had pursuant to section 148-a of the Judiciary Law”. As so modified, order affirmed insofar as appealed from, without costs or disbursement. In our opinion, the radical change in circumstances since our prior decision (Kletnieks v Brookhaven Mem. Assn., 53 AD2d 169) requires that, in the interest of justice, appellant’s motion be granted to the extent provided herein (see Ostrick v Mount Sinai Hosp., 56 AD2d 646). The question of which medical specialty should be represented on the new panel, however, should be determined in accordance with section 148-a (subd 3, par [b]) of the Judiciary Law. Hopkins, J. P., Martuscello, Rabin and Hawkins, JJ., concur.