ASHTON v. CONTINUUM MEDICAL GROUP (2009)

Order, Supreme Court, New York County (Alice Schlesinger, J.), entered April 30, 2009, which, insofar as appealed from as limited by the briefs, in this medical malpractice action, denied defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

The court properly exercised its discretion in directing plaintiff to submit a supplemental expert affirmation stating the basis for the expert's opinion, where defendants were permitted to respond and were not otherwise prejudiced (see Orsini v. Postel, 267 A.D.2d 18, 698 N.Y.S.2d 35 [1999] ).

 The expert medical affirmation submitted by plaintiff, relying on plaintiff's medical records from early 2005 demonstrating the absence of any reference to a cough or a bulge in plaintiff's chest, was sufficient to raise an issue of fact as to whether plaintiff's disease had progressed to the “bulky” stage during the relevant time period and whether his course of treatment would have been different had the disease been diagnosed earlier.   Furthermore, the opinion of plaintiffs' expert was not merely conclusory, as it relied on plaintiff's medical records to draw conclusions (see Boston v. Weissbart, 62 A.D.3d 517, 879 N.Y.S.2d 108 [2009];  compare Parnell v. Montefiore Med. Ctr., 63 A.D.3d 573, 574, 883 N.Y.S.2d 5 [2009] ).

Contrary to defendants' contention, since the opinion of plaintiff's expert did not concern a novel scientific theory of causation, a hearing pursuant to Frye v. United States, 293 F. 1013 [D.C. Cir.1923], was unnecessary (see e.g. Marsh v. Smyth, 12 A.D.3d 307, 785 N.Y.S.2d 440 [2004] ).