Opinion
1190, M-2162
May 28, 2002.
Judgment, Supreme Court, New York County (Nicholas Figueroa, J.), entered March 2, 2001, upon a jury verdict, in defendant's favor, unanimously affirmed, without costs.
STUART M. RISSOFF for plaintiff-appellant.
PATRICIA D'ALVIA, for defendant-respondent.
Before: Williams, P.J., Nardelli, Rosenberger, Marlow, Gonzalez, JJ.
Defendant's CPLR 3101(d) response respecting the expert testimony it intended to offer at trial apprised plaintiff that defendant's experts would dispute and rebut plaintiff's theory that his injury was caused by the failure of defendant, through its on-call anesthesiologist, to properly monitor and regulate plaintiff's body fluid levels. This response, although not detailed, was adequate, under all of the circumstances presented, including plaintiff's access to the hospital record in which plaintiff's anesthesiologist noted various theories other than improper fluid management to explain plaintiff's post-operative condition. All of this put plaintiff on notice that defendant's expert would in his trial testimony attribute plaintiff's injury to causes other than those urged by plaintiff (see, Ryan v. City of New York, 269 A.D.2d 170). Accordingly, the admission of the challenged expert testimony positing a theory of causation different from that espoused by plaintiff was proper and does not constitute a basis to disturb the judgment in defendant's favor.
Motion seeking leave to strike record denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.