Summary
In Orsini, which was decided before Brill, we found that the court properly exercised its discretion in accepting a supplemental physician's affirmation submitted by the plaintiff without leave of court in response to the defendant's reply papers.
Summary of this case from Ostrov v. RozbruchOpinion
December 2, 1999
Order, Supreme Court, New York County (Karla Moskowitz, J.), entered May 3, 1999, which, in an action for medical malpractice, denied defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
Beth Nancy Alson, for plaintiffs-respondents.
Robert W. Finke, for defendant-appellant.
SULLIVAN, J.P., WILLIAMS, WALLACH, LERNER, SAXE JJ.
The IAS court properly exercised its discretion in considering the supplemental physician's affirmation that plaintiff submitted, without prior court leave, in response to defendant's reply, where such affirmation was submitted well in advance of argument, the IAS court expressly offered defendant an opportunity to respond, and it does not otherwise appear that defendant was prejudiced by the IAS court's preference to decide this eve-of-trial motion on as full a record as plaintiff wished to make (see, Agristor Leasing v. Barlow, 180 A.D.2d 899, 901, lv dismissed 80 N.Y.2d 826). In any event, we reject defendant's characterization of plaintiff's initial physician's affirmation as conclusory, and find it sufficient on its own to raise a factual issue.
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.