| Ashton v D.O.C.S. Continuum Med. Group |
| 2009 NY Slip Op 09522 [68 AD3d 613] |
| December 22, 2009 |
| Appellate Division, First Department |
| Randall Ashton, Respondent, v D.O.C.S. ContinuumMedical Group et al., Appellants. |
—[*1] Rosenberg, Minc, Falkoff & Wolff, LLP, New York (Sharon Elmaleh-Schoenman ofcounsel), for respondent.
Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 30, 2009,which, insofar as appealed from as limited by the briefs, in this medical malpractice action,denied defendants' motion for summary judgment dismissing the complaint, unanimouslyaffirmed, without costs.
The court properly exercised its discretion in directing plaintiff to submit a supplementalexpert affirmation stating the basis for the expert's opinion, where defendants were permitted torespond and were not otherwise prejudiced (see Orsini v Postel, 267 AD2d 18 [1999]).
The expert medical affirmation submitted by plaintiff, relying on plaintiff's medical recordsfrom early 2005 demonstrating the absence of any reference to a cough or a bulge in plaintiff'schest, was sufficient to raise an issue of fact as to whether plaintiff's disease had progressed tothe "bulky" stage during the relevant time period and whether his course of treatment would havebeen different had the disease been diagnosed earlier. Furthermore, the opinion of plaintiff'sexpert was not merely conclusory, as it relied on plaintiff's medical records to draw conclusions(see Boston v Weissbart, 62 AD3d517 [2009]; compare Parnell vMontefiore Med. Ctr., 63 AD3d 573, 574 [2009]).
Contrary to defendants' contention, since the opinion of plaintiff's expert did not concern[*2]a novel scientific theory of causation, a hearing pursuant toFrye v United States (293 F 1013 [DC Cir 1923]), was unnecessary (see e.g. Marsh v Smyth, 12 AD3d307 [2004]). Concur—Gonzalez, P.J., Tom, Sweeny, Freedman and Abdus-Salaam,JJ. [Prior Case History: 23 Misc 3d 1138(A), 2009 NY Slip Op 51184(U).]