Weissman v. Wider

235 A.D.2d 474, 652 N.Y.S.2d 1006, 1997 N.Y. App. Div. LEXIS 419

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1997
• Status: Published

Opinion

In an action to recover damages for medical malpractice and wrongful death, the defendants David Allan Baker and Mae B. Hultin separately appeal, as limited by their briefs, from so much of an order of the Supreme Court, Suffolk County (Doyle, J.), dated February 6, 1996, as granted the plaintiffs’ motion for renewal and, upon renewal, vacated its original determination made in an order of the same court, dated March 31, 1995, granting the appellants’ motions for summary judgment dismissing the complaint insofar as asserted against them, and denied the motions.

Ordered that the order is affirmed insofar as appealed from, with one bill of costs.

Under the circumstances presented, the Supreme Court properly exercised its discretion in granting the plaintiffs’ motion for renewal to permit consideration of a subsequently obtained expert’s affidavit (see, Menconeri v Professional Auto Transp., 223 AD2d 915; Hantz v Fishman, 155 AD2d 415; see also, Friedman v U-Haul Truck Rental, 216 AD2d 266; Canzoneri v Wigand Corp., 168 AD2d 593; Oremland v Miller Minutemen Constr. Corp., 133 AD2d 816). In light of the conflicting factual allegations and the opposing expert medical opinions, the court properly denied summary judgment to the appellants (see, Montalbano v North Shore Univ. Hosp., 154 AD2d 579; Mullen v Sonabend, 173 AD2d 528; see also, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851; cf., Datiz v Shoob, 125 AD2d 628, affd 71 NY2d 867). Ritter, J. P., Thompson, Friedmann and McGinity, JJ., concur.