McDermott v. New York Hospital-Cornell Medical Center

Appellate Division of the Supreme Court of New York

McDermott v. New York Hospital-Cornell Medical Center

42 A.D.3d 346, 839 N.Y.S.2d 497

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 12, 2007

StatusPublished

Cited by3 cases

This text of 42 A.D.3d 346 (McDermott v. New York Hospital-Cornell Medical Center) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDermott v. New York Hospital-Cornell Medical Center, 42 A.D.3d 346, 839 N.Y.S.2d 497 (N.Y. Ct. App. 2007).

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Opinion

Orders, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered October 1, 2004 and December 6, 2005, which granted defendants’ motion summary judgment dismissing the complaint and denied plaintiff’s motion for renewal, unanimously affirmed, without costs.

Defendants established prima face entitlement to summary dismissal by submitting affirmations from their medical experts and Dr. Gretz, sufficiently eliminating material issues of fact. In response, plaintiff failed to offer proof in the form of facts “sufficient to require a trial” (CPLR 3212 [b]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The court properly refused to consider the “affirmation” from plaintiffs medical expert who was not licensed to practice in this state (CPLR 2106). This submission was unsupported by the record and was insufficient to defeat defendants’ entitlement to summary judgment (see Wong v Goldbaum, 23 AD3d 277 [2005]).

Plaintiffs renewal motion was based on nothing more than the opinion of a newly retained medical expert (see Giberson v Panter, 286 AD2d 217, 218 [2001], lv denied 97 NY2d 606 [2001]), which was also unsworn (see Simms v APA Truck Leasing Corp., 14 AD3d 322 [2005]; see also Grasso v Angerami, 79 NY2d 813 [1991]). Concur—Saxe, J.P., Friedman, Williams, Buckley and Kavanagh, JJ.

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Orders, Supreme Court, New York County (Sheila AbdusSalaam, J.), entered October 1, 2004 and December 6, 2005, which granted defendants’ motion summary judgment dismissing the complaint and denied plaintiff’s motion for renewal, unanimously affirmed, without costs.

Defendants established prima face entitlement to summary dismissal by submitting affirmations from their medical experts and Dr. Gretz, sufficiently eliminating material issues of fact. In response, plaintiff failed to offer proof in the form of facts “sufficient to require a trial” (CPLR 3212 [b]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The court properly refused to consider the “affirmation” from plaintiffs medical expert who was not licensed to practice in this state (CPLR 2106). This submission was unsupported by the record and was insufficient to defeat defendants’ entitlement to summary judgment (see Wong v Goldbaum, 23 AD3d 277 [2005]).

Plaintiffs renewal motion was based on nothing more than the opinion of a newly retained medical expert (see Giberson v Panter, 286 AD2d 217, 218 [2001], lv denied 97 NY2d 606 [2001]), which was also unsworn (see Simms v APA Truck Leasing Corp., 14 AD3d 322 [2005]; see also Grasso v Angerami, 79 NY2d 813 [1991]). Concur—Saxe, J.P., Friedman, Williams, Buckley and Kavanagh, JJ.

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Bluebook (online)

42 A.D.3d 346, 839 N.Y.S.2d 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-new-york-hospital-cornell-medical-center-nyappdiv-2007.

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