LINDSAY v. Mario L. Giampe, etc., Appellant. (2000)

In an action to recover damages for medical malpractice, the defendant Mario L. Giampe appeals from an order of the Supreme Court, Westchester County (DiBlasi, J.), dated March 24, 2000, which granted the plaintiff's motion to strike his amended expert response to the plaintiff's demand for disclosure of experts pursuant to CPLR 3101(d), and denied that branch of his cross motion which was to strike the plaintiff's amended expert response concerning a pediatric neurologist.

ORDERED that the order is modified by deleting the provision thereof granting the plaintiff's motion to strike the appellant's amended response, and substituting therefor a provision denying the motion;  as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff, by his mother, commenced this action to recover damages for medical malpractice allegedly committed by the defendants in connection with his birth.   In essence, the plaintiff alleged that the appellant, a doctor specializing in obstetrics and gynecology, negligently failed to diagnose and treat a urinary condition of his mother which led to his premature birth, and that the defendant Westchester County Medical Center (hereinafter the WCMC) was negligent in his delivery and postnatal care.   The plaintiff was diagnosed with cerebral palsy.

Shortly before the trial was scheduled to begin, the plaintiff settled with the WCMC. The plaintiff's case would now be tried before a jury solely against the appellant.   The appellant could not assume that the plaintiff would prove the WCMC to have been liable for malpractice.   The focus of the appellant's defense therefore shifted.   Given these legitimate last-minute changes in trial strategies, and an absence of demonstrable prejudice, both the plaintiff and the appellant demonstrated good cause for their amended responses to their mutual demands for expert disclosure (see, CPLR 3101[d][1] ).   The Supreme Court thus improvidently exercised its discretion to the extent that it struck the appellant's amended response.

The appellant's remaining contentions are meritless.

MEMORANDUM BY THE COURT.