Opinion
September 11, 2009.
APPEAL from orders of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered April 24, 2008 and June 17, 2008. The order entered April 24, 2008 granted plaintiff's motion for renewal and reargument to the extent of directing an in camera inspection of plaintiff's expert affirmation. The order entered June 17, 2008, upon reargument and renewal, vacated a prior order granting summary judgment dismissal to defendant and reinstated plaintiffs complaint.
Jones Hirsch Connors Bull P.C., New York City, for appellant. Kerner Kerner, New York City, for respondent.
Before: SCHOENFELD and HEITLER, JJ., concur.
OPINION OF THE COURT
Orders, entered April 24, 2008, and June 17, 2008, affirmed, with one bill of $10 costs.
Civil Court properly exercised its discretion in granting plaintiff leave to renew based upon the affirmation of plaintiff's attorney explaining why his medical expert's affirmation was unsigned and redacted ( see Mattis v Keen, Zhao, 54 AD3d 610) and correcting the procedural error pursuant to CPLR 2106 ( see Cespedes v McNamee, 308 AD2d 409; Puntino v Chin, 288 AD2d 202). On renewal, the court correctly determined that factual issues were presented by the conflicting opinions offered by the parties' medical experts as to whether defendant departed from the prevailing standard of care and, if so, whether such departure proximately caused plaintiff's injuries ( see Prigorac v Park, 20 AD3d 363).
I agree with the majority that Civil Court properly exercised its discretion in granting renewal and permitting plaintiff to cure deficiencies in the expert affirmation submitted in opposition to defendant's motion for summary judgment ( see Mattis v Keen, Zhao, 54 AD3d 610). I disagree, however, with the majority's conclusion that the affirmation of plaintiff's expert was sufficient to raise issues of fact warranting a trial.
While plaintiff's expert opined that defendant's employees departed from good and accepted dental practice in their treatment of plaintiff, apparently in not initially utilizing more conservative modalities, nary a word is uttered on how that supposed deviation caused the multitude of physical complaints alleged in plaintiff's bill of particulars. Plaintiffs expert's opinion on causation consisted of nothing more than a generalized, conclusory statement that plaintiff's pain and suffering, both past and future, were caused by defendant's alleged malpractice.
Defendant's expert, on the other hand, was quite specific in explaining that plaintiff's claimed injuries were either preexisting, caused by smoking or poor oral hygiene, or neurologically and/or physiologically impossible, based on the treatment rendered by defendant.
Plaintiffs submissions, in my view, were legally insufficient to establish a causal nexus between the claimed departure and plaintiff's injuries ( Koeppel v Park, 228 AD2d 288). Thus, on renewal, defendant was entitled to summary judgment dismissing the complaint.
McKEON, P.J., concurs in part and dissents in part in a separate opinion.