McDermott v. New York Hospital-Cornell Medical Center

Jul 12, 2007
Versions:42 A.D.3d 346
839 N.Y.S.2d 497

Orders, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered October 1, 2004 and December 6, 2005, which granted defendants’ motion summary judgment dismissing the complaint and denied plaintiff‘s motion for renewal, unanimously affirmed, without costs.

Defendants established prima facie entitlement to summary dismissal by submitting affirmations from their medical experts and Dr. Gretz, sufficiently eliminating material issues of fact. In response, plaintiff failed to offer proof in the form of facts “sufficient to require a trial” (CPLR 3212 [b]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The court properly refused to consider the “affirmation” from plaintiff‘s medical expert who was not licensed to practice in this state (CPLR 2106). This submission was unsupported by the record and was insufficient to defeat defendants’ entitlement to summary judgment (see Wong v Goldbaum, 23 AD3d 277 [2005]).

Plaintiff‘s renewal motion was based on nothing more than the opinion of a newly retained medical expert (see Giberson v Panter, 286 AD2d 217, 218 [2001], lv denied 97 NY2d 606 [2001]), which was also unsworn (see Simms v APA Truck Leasing Corp., 14 AD3d 322 [2005]; see also Grasso v Angerami, 79 NY2d 813 [1991]).

Concur—Saxe, J.P., Friedman, Williams, Buckley and Kavanagh, JJ.