BRIEN v. (and a third-party action).

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

Michael O'BRIEN, etc., et al., respondents, v. RICHMOND MEMORIAL HOSPITAL AND HEALTH CENTER, appellant, et al., defendants (and a third-party action).

Decided: July 26, 1999

LAWRENCE J. BRACKEN, J.P., WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, LEO F. McGINITY and ROBERT W. SCHMIDT, JJ. Amabile & Erman, P.C., Staten Island, N.Y. (Kim Carnesi and Karen Hauss of counsel), for appellant.

In an action to recover damages for medical malpractice, etc., the defendant Richmond Memorial Hospital and Health Center appeals from an order of the Supreme Court, Richmond County (Mastro, J.), dated April 1, 1998, which denied its motion, denominated as one for reargument but which was in fact one for renewal of its prior motion for summary judgment dismissing the complaint insofar as asserted against it, which was determined by order of the same court dated January 21, 1998.

ORDERED that the order is modified by deleting the provision thereof denying the application for renewal and substituting therefor a provision granting renewal and upon renewal adhering to the determination in the prior order dated January 21, 1998;  as so modified, the order is affirmed, without costs or disbursements.

 The motion of the defendant Richmond Memorial Hospital and Health Center (hereinafter the Hospital), characterized as one for reargument of its prior motion for summary judgment, was actually one for renewal since it was based upon new facts which were unavailable at the time of the original motion for summary judgment was submitted (cf., Hantz v. Fishman, 155 A.D.2d 415, 547 N.Y.S.2d 350).   However, we have modified the order appealed from to grant renewal, thereupon allowing us to reach the merits of the prior motion for summary judgment dismissing the complaint insofar as asserted against the Hospital.   We adhere to the original determination denying summary judgment, since the Hospital's use of a redacted expert's affidavit was legally and factually insufficient to demonstrate its entitlement to summary judgment (see, Marano v. Mercy Hosp., 241 A.D.2d 48, 52, 670 N.Y.S.2d 570;  see also, Henson v. Winthrop Univ. Hosp., 249 A.D.2d 510, 672 N.Y.S.2d 124).

MEMORANDUM BY THE COURT.

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