Summary
applying factors of validity of excuse, length of delay, and extent of prejudice on issue of untimely submission of motion paper
Summary of this case from Chevra Gmilas Chesed Stropkover Joseph Chaim v. Wash. CemeteryOpinion
2012-06-15
Derek PAYNE, Plaintiff–Respondent, v. BUFFALO GENERAL HOSPITAL, Stanley H. Kim, M.D., Vinod R. Patel, M.D., Heidi Narins Suffoletto, M.D., Mei Yim Wong, M.D., Defendants–Appellants, et al., Defendant. (Appeal No. 1.)
Gibson, McAskill & Crosby, LLP, Buffalo (Mark Spitler of Counsel), for Defendants–Appellants Buffalo General Hospital, Heidi Narins Suffoletto, M.D., and Mei Yim Wong, M.D. Connors & Vilardo, LLP, Buffalo (Meghan M. Brown of Counsel), for Defendants–Appellants Stanley H. Kim, M.D. and Vinod R. Patel, M.D.
Gibson, McAskill & Crosby, LLP, Buffalo (Mark Spitler of Counsel), for Defendants–Appellants Buffalo General Hospital, Heidi Narins Suffoletto, M.D., and Mei Yim Wong, M.D. Connors & Vilardo, LLP, Buffalo (Meghan M. Brown of Counsel), for Defendants–Appellants Stanley H. Kim, M.D. and Vinod R. Patel, M.D.
Vinal & Vinal, Buffalo (Jeanne M. Vinal of Counsel), for Plaintiff–Respondent.
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff commenced this medical malpractice action seeking damages for injuries he sustained after suffering a stroke while under defendants' care. Defendants-appellants (defendants) moved for summary judgment dismissing the complaint against them, and plaintiff made an oral application to compel defendants to accept the untimely affirmation of his medical expert submitted in opposition to defendants' motions. In appeal No. 1, defendants appeal from an order granting plaintiff's application and, in appeal No. 2, they appeal from an order denying their motions for summary judgment dismissing the complaint against them.
With respect to appeal No. 1, we reject defendants' contention that Supreme Court erred in granting plaintiff's application and in thus considering plaintiff's untimely expert affirmation. “While a court can in its discretion accept late papers, CPLR 2214 and [CPLR] 2004 mandate that the delinquent party offer a valid excuse for the delay ... Additional factors relevant when essentially extending the return day by accepting late papers include, among others, the length of the delay and any prejudice” (Mallards Dairy, LLC v. E & M Engrs. & Surveyors, P.C., 71 A.D.3d 1415, 1416, 897 N.Y.S.2d 552 [internal quotation marks omitted]; see generally Foitl v. G.A.F. Corp., 64 N.Y.2d 911, 912–913, 488 N.Y.S.2d 377, 477 N.E.2d 618). Plaintiff's attorney offered a valid excuse for the delay ( see Mallards Dairy, LLC, 71 A.D.3d at 1416, 897 N.Y.S.2d 552;Associates First Capital v. Crabill, 51 A.D.3d 1186, 1188, 857 N.Y.S.2d 799,lv. denied11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653;cf. Gagnon v. St. Joseph's Hosp., 90 A.D.3d 1605, 1607, 935 N.Y.S.2d 789), the delay of only several days was minimal ( see Associates First Capital, 51 A.D.3d at 1188, 857 N.Y.S.2d 799), and “any prejudice was alleviated when defendant[s were] permitted to submit ... reply affidavit[s] in response to plaintiff's late submission” ( Mallards Dairy, LLC, 71 A.D.3d at 1416, 897 N.Y.S.2d 552).
With respect to appeal No. 2, we conclude that the court properly denied defendants' motions for summary judgment dismissing the complaint against them. At the outset, we reject the contention of defendants that plaintiff's expert failed to offer an adequate foundation for his qualifications in neurosurgery and emergency medicine. It is well recognized that a plaintiff's expert need not have practiced in the same speciality as the defendants ( see Diel v. Bryan, 57 A.D.3d 1493, 1494, 871 N.Y.S.2d 517). The record includes the redacted affirmation of plaintiff's expert stating that the expert was a physician duly admitted to practice in New York, had been licensed and had practiced for over 20 years, had a specialty in neurology, and had practiced in emergency room settings in hospitals in Western New York. We conclude that the expert's affirmation was sufficient to demonstrate that the expert has “the requisite skill, training, education, knowledge or experience from which it can be assumed that [the expert's] opinion rendered [on the issues of negligence and proximate cause] is reliable” ( Bickom v. Bierwagen, 48 A.D.3d 1247, 1248, 852 N.Y.S.2d 542 [internal quotation marks omitted]; see Chipley v. Stephenson, 72 A.D.3d 1548, 1549, 900 N.Y.S.2d 538;cf. Behar v. Coren, 21 A.D.3d 1045, 1047, 803 N.Y.S.2d 629,lv. denied6 N.Y.3d 705, 812 N.Y.S.2d 34, 845 N.E.2d 466).
Although we conclude that defendants Buffalo General Hospital, Heidi Narins Suffoletto, M.D. and Mei Yim Wong, M.D. met their initial burden on their motion of establishing their entitlement to judgment as a matter of law, we conclude that the affirmation of plaintiff's expert submitted in opposition to the motion of those defendants raised triable issues of fact sufficient to defeat the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). With respect to the motion of defendants Stanley H. Kim, M.D. and Vinod R. Patel, M.D., we note that, as defendants in a medical malpractice case moving for summary judgment dismissing the complaint against them, they had “ ‘the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby’ ” ( Gagnon, 90 A.D.3d at 1605, 935 N.Y.S.2d 789). The expert affidavits submitted by those defendants in support of their motion “ ‘fail[ed] to address each of the specific factual claims of negligence raised in plaintiff's bill of particulars, [and thus] th[ose] affidavit[s are] insufficient to support a motion for summary judgment as a matter of law’ ” ( id.; see Humphrey v. Gardner, 81 A.D.3d 1257, 1258, 916 N.Y.S.2d 430).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.