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O'Brien v. Richmond Memorial Hospital & Health Center

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 1999
263 A.D.2d 532 (N.Y. App. Div. 1999)

Opinion

Submitted May 12, 1999

July 26, 1999

In an action to recover damages for medical malpractice, etc., the defendant Richmond Memorial Hospital and Health Center appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated April 1, 1998, which denied its motion, denominated as one for reargument but which was in fact one for renewal of its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which was determined by order of the same court dated January 21, 1998.

Amabile Erman, P.C., Staten Island, N.Y. (Kim Carnesi and Karen Hauss of counsel), for appellant.

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY, ROBERT W. SCHMIDT, JJ.


DECISION ORDER

ORDERED that the order is modified by deleting the provision thereof denying the application for renewal and substituting therefor a provision granting renewal and upon renewal adhering to the determination in the prior order dated January 21, 1998; as so modified, the order is affirmed, without costs or disbursements.

The motion of the defendant Richmond Memorial Hospital and Health Center (hereinafter the Hospital), characterized as one for reargument of its prior motion for summary judgment, was actually one for renewal since it was based upon new facts which were unavailable at the time of the original motion for summary judgment was submitted ( cf., Hantz v. Fishman, 155 A.D.2d 415). However, we have modified the order appealed from to grant renewal, thereupon allowing us to reach the merits of the prior motion for summary judgment dismissing the complaint insofar as asserted against the Hospital. We adhere to the original determination denying summary judgment, since the Hospital's use of a redacted expert's affidavit was legally and factually insufficient to demonstrate its entitlement to summary judgment ( see, Marano v. Mercy Hosp., 241 A.D.2d 48, 52; see also, Henson v. Winthrop Univ. Hosp., 249 A.D.2d 510).


Summaries of

O'Brien v. Richmond Memorial Hospital & Health Center

Appellate Division of the Supreme Court of New York, Second Department
Jul 26, 1999
263 A.D.2d 532 (N.Y. App. Div. 1999)
Case details for

O'Brien v. Richmond Memorial Hospital & Health Center

Case Details

Full title:MICHAEL O'BRIEN, etc., et al., respondents, v. RICHMOND MEMORIAL HOSPITAL…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jul 26, 1999

Citations

263 A.D.2d 532 (N.Y. App. Div. 1999)
693 N.Y.S.2d 206

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