ORSINI v. POSTEL (1999)

Supreme Court, Appellate Division, First Department, New York.

Morgan ORSINI, Individually and as Administrator of the Estate of Susan Casper, Deceased, et al., Plaintiffs-Respondents, v. Steven POSTEL, as Executor of Allen H. Postel, Deceased, Defendant-Appellant.

Decided: December 02, 1999

SULLIVAN, J.P., WILLIAMS, WALLACH, LERNER and SAXE JJ.

Beth Nancy Alson, for Plaintiffs-Respondents. Robert W. Finke, for Defendant-Appellant.

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.

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, 579 N.Y.S.2d 476, lv. dismissed 80 N.Y.2d 826, 587 N.Y.S.2d 908, 600 N.E.2d 635). 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.

MEMORANDUM DECISION.

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