Kratter v. Weintraub

97 A.D.2d 491, 467 N.Y.S.2d 414, 1983 N.Y. App. Div. LEXIS 20082

Opinion

In a medical malpractice action to recover damages for personal injuries, etc., the appeal is from an order of the Supreme Court, Westchester County (Cerrato, J.), dated April 1, 1983, which granted plaintiffs’ motion for leave to renew and reargue, and thereupon vacated a prior order dated December 23,1982, which granted the appellants’ motion for summary judgment dismissing the complaint as to them and denied said motion. Order reversed, on the law, with costs, plaintiffs’ motion for leave to renew and reargue denied and order dated December 23, 1982, reinstated. Upon plaintiffs’ motion for leave to renew and reargue a prior order which dismissed their complaint as to the appellants, they submitted an affidavit of a medical expert in order to remedy an evidentiary deficiency. By plaintiffs’ own admission, the affiant had not been retained solely after the granting of the appellants’ motion for summary judgment but had been engaged as a medical expert on this case for some time prior to said determination. Plaintiffs, however, failed to offer any explanation for their failure to have submitted an affidavit of a qualified medical expert in opposition to the motion for summary judgment. We conclude that under the particular circumstances of this case, plaintiffs’ failure to have submitted a medical affidavit in response to the appellants’ motion for summary judgment was fatal. Accordingly, the complaint was properly dismissed as against the appellants and plaintiffs’ motion for leave to renew and reargue should not have been granted. Lazer, J. P., Gibbons, Weinstein and Boyers, JJ., concur.