Soriano v. Inoa

73 A.D.3d 459, 899 N.Y.S.2d 614

Opinion

Order, Supreme Court, Bronx County (Larry S. Schachner, J), entered November 6, 2008, which denied plaintiffs motion to set aside a trial order dismissing the complaint, unanimously reversed, on the facts, without costs, the motion denied, the complaint reinstated, and the matter remanded for further discovery on the newly revealed material and for a new trial.

It is unclear from the trial record whether Dr. Gutstein was an expert witness as to whom CPLR 3101 (d) notice was required, or plaintiffs treating physician, as to whom no notice was required (see e.g. Breen v Laric Entertainment Corp., 2 AD3d 298, 299-300 [2003]). Moreover, it is clear that the prejudice to defendants arose from the lack of proper authorizations for medical records and not from the report annexed to plaintiffs expert notice. Accordingly, Gutstein’s testimony as to causation should not have been precluded on the ground of plaintiffs late service of the notice. Concur—Mazzarelli, J.P., Sweeny, Freedman, Richter and Manzanet-Daniels, JJ.