DARWICK v. PATERNOSTER (2008)

In an action to recover damages for dental malpractice, etc., the defendant appeals from an order of the Supreme Court, Westchester County (Nastasi, J.), entered December 17, 2007, which denied his motion for leave to renew his prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered October 9, 2007.

ORDERED that the order entered December 17, 2007, is reversed, on the law, the facts, and in the exercise of discretion, without costs or disbursements, the defendant's motion for leave to renew is granted, and, upon renewal, the original determination in the order entered October 9, 2007, denying the defendant's motion for summary judgment dismissing the complaint is adhered to.

 In an order entered October 9, 2007, the Supreme Court denied the defendant's motion for summary judgment dismissing the complaint on the ground that he failed to meet his prima facie burden because the expert affirmations upon which he relied did not comply with CPLR 2106 and did not constitute competent evidence (see Liao v. Festa, 18 A.D.3d 448, 794 N.Y.S.2d 905;  Mezentseff v. Ming Yat Lau, 284 A.D.2d 379, 725 N.Y.S.2d 898;  Moore v. Tappen, 242 A.D.2d 526, 527, 661 N.Y.S.2d 665;  see also Parente v. Kang, 37 A.D.3d 687, 831 N.Y.S.2d 430).   However, in support of his motion for leave to renew, the defendant offered the new affirmations of his experts which were properly affirmed under the penalties of perjury, thereby correcting his inadvertent procedural error.   Thus, the Supreme Court improvidently exercised its discretion in denying the motion for leave to renew (see DeLeonardis v. Brown, 15 A.D.3d 525, 526, 790 N.Y.S.2d 686;  Wester v. Sussman, 304 A.D.2d 656, 757 N.Y.S.2d 500;  Puntino v. Chin, 288 A.D.2d 202, 733 N.Y.S.2d 108;  Lauer v. Rapp, 190 A.D.2d 778, 593 N.Y.S.2d 843).

 Nevertheless, upon renewal, the original determination in the order entered October 9, 2007, denying the defendant's motion for summary judgment dismissing the complaint, should have been adhered to.   In opposition to the defendant's prima facie showing of entitlement to judgment as a matter of law (see Singh v. Boodhoo, 17 A.D.3d 345, 791 N.Y.S.2d 842;  Stancavage v. Mirman, 309 A.D.2d 918, 766 N.Y.S.2d 107), the affirmation of the plaintiff's undisclosed expert was sufficient to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 327, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Fileccia v. Massapequa Gen. Hosp., 63 N.Y.2d 639, 479 N.Y.S.2d 520, 468 N.E.2d 702;  Anderson v. Lamaute, 306 A.D.2d 232, 233-234, 761 N.Y.S.2d 87).   The undisclosed expert recited specific facts in the medical records upon which that expert's opinion was based (see Anderson v. Lamaute, 306 A.D.2d at 234, 761 N.Y.S.2d 87).   The conflicting medical expert opinions present a triable issue of fact as to whether the failure to administer antibiotics in the situation presented was a deviation from accepted practice in dentistry (see Graham v. Mitchell, 37 A.D.3d 408, 409, 829 N.Y.S.2d 628;  Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661;  Shields v. Baktidy, 11 A.D.3d 671, 672, 783 N.Y.S.2d 652;  Barbuto v. Winthrop Univ. Hosp., 305 A.D.2d 623, 624, 760 N.Y.S.2d 199;  Halkias v. Otolaryngology-Facial Plastic Surgery Assoc., 282 A.D.2d 650, 724 N.Y.S.2d 432).