| Darwick v Paternoster |
| 2008 NY Slip Op 09346 [56 AD3d 714] |
| November 25, 2008 |
| Appellate Division, Second Department |
| Jean Darwick, Respondent, v Richard A. Paternoster,Appellant. |
—[*1] Alpert & Kaufman, LLP, New York, N.Y. (Morton Alpert of counsel), forrespondent.
In an action to recover damages for dental malpractice, etc., the defendant appeals from anorder of the Supreme Court, Westchester County (Nastasi, J.), entered December 17, 2007, whichdenied his motion for leave to renew his prior motion for summary judgment dismissing thecomplaint, which had been denied in an order of the same court entered October 9, 2007.
Ordered that the order entered December 17, 2007, is reversed, on the law, the facts, and inthe exercise of discretion, without costs or disbursements, the defendant's motion for leave torenew is granted, and, upon renewal, the original determination in the order entered October 9,2007, denying the defendant's motion for summary judgment dismissing the complaint is adheredto.
In an order entered October 9, 2007, the Supreme Court denied the defendant's motion forsummary judgment dismissing the complaint on the ground that he failed to meet his prima facieburden because the expert affirmations upon which he relied did not comply with CPLR 2106and did not constitute competent evidence (see Liao v Festa, 18 AD3d 448 [2005];Mezentseff v Ming Yat Lau, 284 AD2d 379 [2001]; Moore v Tappen, 242 AD2d526, 527 [1997]; see also Parente v Kang, 37 AD3d 687 [2007]). However, in support ofhis motion for leave to renew, the defendant offered the new affirmations of his experts whichwere properly affirmed under the penalties of perjury, thereby correcting his inadvertentprocedural error. Thus, the Supreme Court improvidently exercised its discretion in denying themotion for leave to renew (see DeLeonardis v Brown, 15 AD3d 525, 526 [2005];Wester v Sussman, 304 AD2d 656 [2003]; Puntino v Chin, 288 AD2d 202[2001]; Lauer v Rapp, 190 AD2d 778 [1993]).[*2]
Nevertheless, upon renewal, the original determination inthe order entered October 9, 2007, denying the defendant's motion for summary judgmentdismissing the complaint, should have been adhered to. In opposition to the defendant's primafacie showing of entitlement to judgment as a matter of law (see Singh v Boodhoo, 17AD3d 345 [2005]; Stancavage v Mirman, 309 AD2d 918 [2003]), the affirmation of theplaintiff's undisclosed expert was sufficient to raise a triable issue of fact (see Alvarez vProspect Hosp., 68 NY2d 320, 327 [1986]; Fileccia v Massapequa Gen. Hosp., 63NY2d 639 [1984]; Anderson v Lamaute, 306 AD2d 232, 233-234 [2003]). Theundisclosed expert recited specific facts in the medical records upon which that expert's opinionwas based (see Anderson v Lamaute, 306 AD2d at 234). The conflicting medical expertopinions present a triable issue of fact as to whether the failure to administer antibiotics in thesituation presented was a deviation from accepted practice in dentistry (see Graham vMitchell, 37 AD3d 408, 409 [2007]; Feinberg v Feit, 23 AD3d 517, 519 [2005];Shields v Baktidy, 11 AD3d 671, 672 [2004]; Barbuto v Winthrop Univ. Hosp.,305 AD2d 623, 624 [2003]; Halkias v Otolaryngology-Facial Plastic Surgery Assoc.,282 AD2d 650 [2001]). Mastro, J.P., Spolzino, Balkin and Leventhal, JJ., concur.