| Feliciano v New York City Health & Hosps. Corp. |
| 2009 NY Slip Op 03947 [62 AD3d 537] |
| May 19, 2009 |
| Appellate Division, First Department |
| Jose Feliciano, Appellant, v New York City Health andHospitals Corp. et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 11, 2008,which, in this medical malpractice action, inter alia, granted defendants' motion for summaryjudgment dismissing the complaint, unanimously affirmed, without costs.
The motion court properly determined that in opposition to defendants' prima facie showingthat they had not departed from good and accepted medical standards in their care and treatmentof plaintiff's wrist injury, plaintiff did not offer any evidence to raise a triable question of fact asto defendants' possible negligence or the lack of informed consent. Although plaintiff contendsthat the supplemental affirmation of defendants' expert physician, submitted in reply to plaintiff'sopposition, improperly introduced a new argument in support of summary judgment dismissal,the reply affirmation was appropriate since "defendants' arguments could not have beensubmitted at an earlier juncture because of the indefiniteness of plaintiff's initial pleading"(Held v Kaufman, 91 NY2d 425, 430 [1998]; see also Home Ins. Co. v Leprino Foods Co., 7 AD3d 471 [2004]).Indeed, not only did plaintiff's expert raise a new theory of medical malpractice in the opposingaffirmation, but did so in disregard of clear medical evidence that plaintiff did not suffer fromthat condition (see Moore v New YorkMed. Group, P.C., 44 AD3d 393, 395-396 [2007], lv dismissed 10 NY3d 740[2008]). Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Renwick, JJ.