O'Brien v. Richmond Memorial Hospital & Health Center

263 A.D.2d 532, 693 N.Y.S.2d 206, 1999 N.Y. App. Div. LEXIS 8398

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 26, 1999
• Status: Published

Opinion

—In an action to recover damages for medical malpractice, etc., the defendant Richmond Memorial Hospital and Health Center appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated April 1, 1998, which denied its motion, denominated as one for reargument but which was in fact one for renewal of its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which was determined by order of the same court dated January 21, 1998.

Ordered that the order is modified by deleting the provision thereof denying the application for renewal and substituting therefor a provision granting renewal and upon renewal adhering to the determination in the prior order dated January 21, 1998; as so modified, the order is affirmed, without costs or disbursements.

The motion of the defendant Richmond Memorial Hospital and Health Center (hereinafter the Hospital), characterized as one for reargument of its prior motion for summary judgment, was actually one for renewal since it was based upon new facts which were unavailable at the time of the original motion for summary judgment was submitted (cf., Hantz v Fishman, 155 AD2d 415). However, we have modified the order appealed from to grant renewal, thereupon allowing us to reach the merits of the prior motion for summary judgment dismissing the complaint insofar as asserted against the Hospital. We adhere to the original determination denying summary judgment, since the Hospital’s use of a redacted expert’s affidavit was legally and factually insufficient to demonstrate its entitlement to summary judgment (see, Marano v Mercy Hosp., 241 AD2d 48, 52; see also, Henson v Winthrop Univ. Hosp., 249 AD2d 510). Bracken, J. P., Thompson, Goldstein, McGinity and Schmidt, JJ., concur.