| Mattis v Keen, Zhao |
| 2008 NY Slip Op 06935 [54 AD3d 610] |
| September 18, 2008 |
| Appellate Division, First Department |
| Gary V. Mattis et al., Appellants, v Keen, Zhao et al.,Defendants, and Michael Palmeri, M.D., et al., Respondents. |
—[*1] Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Lori Semlies of counsel), forrespondents.
Order, Supreme Court, Bronx County (Mary Ann Brigantti-Hughes, J.), entered March 10,2008, which, insofar as appealable and appealed from, denied sub silentio plaintiffs' motion torenew an order, same court and Justice, entered on or about October 18, 2007, inter alia, grantingthe motion of defendants Ginsberg and Sound Shore Medical Center of Westchester (SoundShore) for summary judgment dismissing the complaint as against them, unanimously reversed,on the law and the facts, without costs, the motion to renew granted, and upon renewal,Ginsberg's and Sound Shore's motion for summary judgment denied and the complaint reinstatedas against them. Appeal from the October 18, 2007 order unanimously dismissed, without costs,as academic in view of the foregoing.
Plaintiff Gary Mattis injured his left shoulder in a motor vehicle accident. Surgery wasperformed at Sound Shore with anesthesia being administered by Ginsberg, who was not anemployee of Sound Shore. The surgery was successful and plaintiff initially awoke from theanesthesia and was responsive in the operating room. However, by the time he arrived at therecovery room or shortly thereafter, he was unresponsive, had an elevated heart rate, washyperventilating, and began seizing.
The initial motion for summary judgment dismissing the complaint as against, inter alia,Ginsberg and Sound Shore was properly granted. Defendants met their initial burden ofestablishing that they did not deviate from accepted medical practice in the treatment of plaintiff,or that they in any way proximately caused his injuries (see Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]). Plaintiffs' opposition to the motion failed to raise a triable issueinasmuch as the affirmation from their medical expert was unaffirmed, unsigned and redacted thename of the expert. Although CPLR 3101 (d) (1) (i) permits a party to omit the names of medicalexperts in an action for medical malpractice (see e.g. Vega v Mount Sinai-NYU Med. Ctr. &Health Sys., 13 [*2]AD3d 62, 63 [2004]), plaintiffs failed toexplain why the affirmation was unsigned and redacted and did not provide the court with anunredacted version of the affirmation "to ensure that the purported expert in fact exist[s]"(Kruck v St. John's Episcopal Hosp., 228 AD2d 565, 566 [1996]).
However, the motion court's sub silentio denial of the motion to renew was error. Plaintiffsset forth additional facts supporting a theory of liability for medical malpractice under thedoctrine of res ipsa loquitur. Plaintiffs submitted a revised affirmation from their medical expertexplaining in greater detail the expert's basis for concluding that Ginsberg departed from goodand accepted medical practice and how this departure resulted in the brain damage suffered byplaintiff. Plaintiffs also submitted an affirmation from their attorney explaining the reason whythe identity of the expert was redacted and offering to provide the court with an unredactedversion for in camera review. Counsel further stated that the initial failure to provide the courtwith an explanation as to why the expert's affirmation was unsigned and redacted was inadvertentand attributable to the fact that counsel took over the case from plaintiffs' prior attorney afterdefendants had moved for summary judgment.
Although motions to renew should be based on newly discovered facts that could not havebeen offered on the prior motion, courts have discretion to relax this requirement and grant themotion in the interest of justice (see Mejia v Nanni, 307 AD2d 870, 871 [2003]). Becauseplaintiffs' attorney affirmation properly explains why their medical expert's affirmation wasunsigned and redacted, it is admissible pursuant to CPLR 3101 (d) (1) (i) (see Thomas vAlleyne, 302 AD2d 36, 38 [2002]). Moreover, the evidence raises triable issues of fact as toall elements of res ipsa loquitur. Plaintiffs' medical expert explained that the deprivation ofoxygen to plaintiff's brain is an event that would not ordinarily occur unless there was negligenceon the part of the anesthesiologist; plaintiff was under Ginsberg's and other Sound Shorepersonnel's exclusive control before, during and after the surgery; and there is no evidence thatplaintiff, having just come out of surgery and still emerging from the anesthesia, did anything tocontribute to his condition (see States v Lourdes Hosp., 100 NY2d 208, 211 [2003]).
We have considered the remaining contentions of Ginsberg and Sound Shore and find themunavailing. Concur—Mazzarelli, J.P., Andrias, Saxe, Friedman and Acosta, JJ.