Nurik v. Ollstein

231 A.D.2d 458, 647 N.Y.S.2d 464, 1996 N.Y. App. Div. LEXIS 9397

Opinion

Order, Supreme Court, New York County (Helen Freedman, J.), entered on or about June 26, 1996, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The motion court properly considered the revised expert affidavit submitted by plaintiff after the return date of the motion upon the court’s own suggestion and with little resulting delay. In any event, the "reorganized” affidavit and report contained virtually the same findings and conclusions as the original. A doctor need not specifically couch his statement in terms of " 'a reasonable degree of medical certainty’ ” in order for it to "convey! ] equivalent assurance that it [is] not based on either supposition or speculation” (Matott v Ward, 48 NY2d 455, 463). On the merits, we agree with the motion court that issues of fact exist as to whether defendant should have made the incision lower on plaintiff’s abdomen and whether the failure to do so necessitated the corrective surgery that plaintiff underwent. For present purposes, the opinion of plaintiff’s expert to that effect should not be deemed unreliable for his having relied primarily on photographs of plaintiff taken after the initial and before the corrective surgery, rather than on any medical records. Concur—Murphy, P. J., Rosenberger, Wallach, Kupferman and Nardelli, JJ.