SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
786
CA 11-02107
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.
DEREK PAYNE, PLAINTIFF-RESPONDENT,
V MEMORANDUM AND ORDER
BUFFALO GENERAL HOSPITAL, STANLEY H. KIM, M.D.,
VINOD R. PATEL, M.D., HEIDI NARINS SUFFOLETTO,
M.D., MEI YIM WONG, M.D., DEFENDANTS-APPELLANTS,
ET AL., DEFENDANT.
(APPEAL NO. 1.)
GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (MARK SPITLER OF COUNSEL), FOR
DEFENDANTS-APPELLANTS BUFFALO GENERAL HOSPITAL, HEIDI NARINS
SUFFOLETTO, M.D., AND MEI YIM WONG, M.D.
CONNORS & VILARDO, LLP, BUFFALO (MEGHAN M. BROWN OF COUNSEL), FOR
DEFENDANTS-APPELLANTS STANLEY H. KIM, M.D. AND VINOD R. PATEL, M.D.
VINAL & VINAL, BUFFALO (JEANNE M. VINAL OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.
Appeals from an order of the Supreme Court, Erie County (Joseph
R. Glownia, J.), entered December 21, 2010 in a medical malpractice
action. The order granted the oral application of plaintiff to compel
defendants to accept his untimely medical expert affirmation.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: Plaintiff commenced this medical malpractice action
seeking damages for injuries he sustained after suffering a stroke
while under defendants’ care. Defendants-appellants (defendants)
moved for summary judgment dismissing the complaint against them, and
plaintiff made an oral application to compel defendants to accept the
untimely affirmation of his medical expert submitted in opposition to
defendants’ motions. In appeal No. 1, defendants appeal from an order
granting plaintiff’s application and, in appeal No. 2, they appeal
from an order denying their motions for summary judgment dismissing
the complaint against them.
With respect to appeal No. 1, we reject defendants’ contention
that Supreme Court erred in granting plaintiff’s application and in
thus considering plaintiff’s untimely expert affirmation. “While a
court can in its discretion accept late papers, CPLR 2214 and [CPLR]
2004 mandate that the delinquent party offer a valid excuse for the
delay . . . Additional factors relevant when essentially extending the
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return day by accepting late papers include, among others, the length
of the delay and any prejudice” (Mallards Dairy, LLC v E&M Engrs. &
Surveyors, P.C., 71 AD3d 1415, 1416 [internal quotation marks
omitted]; see generally Foitl v G.A.F. Corp., 64 NY2d 911, 912-913).
Plaintiff’s attorney offered a valid excuse for the delay (see
Mallards Dairy, LLC, 71 AD3d at 1416; Associates First Capital v
Crabill, 51 AD3d 1186, 1188, lv denied 11 NY3d 702; cf. Gagnon v St.
Joseph’s Hosp., 90 AD3d 1605, 1607), the delay of only several days
was minimal (see Associates First Capital, 51 AD3d at 1188), and “any
prejudice was alleviated when defendant[s were] permitted to submit .
. . reply affidavit[s] in response to plaintiff’s late submission”
(Mallards Dairy, LLC, 71 AD3d at 1416).
With respect to appeal No. 2, we conclude that the court properly
denied defendants’ motions for summary judgment dismissing the
complaint against them. At the outset, we reject the contention of
defendants that plaintiff’s expert failed to offer an adequate
foundation for his qualifications in neurosurgery and emergency
medicine. It is well recognized that a plaintiff’s expert need not
have practiced in the same speciality as the defendants (see Diel v
Bryan, 57 AD3d 1493, 1494). The record includes the redacted
affirmation of plaintiff’s expert stating that the expert was a
physician duly admitted to practice in New York, had been licensed and
had practiced for over 20 years, had a specialty in neurology, and had
practiced in emergency room settings in hospitals in Western New York.
We conclude that the expert’s affirmation was sufficient to
demonstrate that the expert has “the requisite skill, training,
education, knowledge or experience from which it can be assumed that
[the expert’s] opinion rendered [on the issues of negligence and
proximate cause] is reliable” (Bickom v Bierwagen, 48 AD3d 1247, 1248
[internal quotation marks omitted]; see Chipley v Stephenson, 72 AD3d
1548, 1549; cf. Behar v Coren, 21 AD3d 1045, 1047, lv denied 6 NY3d
705).
Although we conclude that defendants Buffalo General Hospital,
Heidi Narins Suffoletto, M.D. and Mei Yim Wong, M.D. met their initial
burden on their motion of establishing their entitlement to judgment
as a matter of law, we conclude that the affirmation of plaintiff’s
expert submitted in opposition to the motion of those defendants
raised triable issues of fact sufficient to defeat the motion (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). With
respect to the motion of defendants Stanley H. Kim, M.D. and Vinod R.
Patel, M.D., we note that, as defendants in a medical malpractice case
moving for summary judgment dismissing the complaint against them,
they had “ ‘the initial burden of establishing the absence of any
departure from good and accepted medical practice or that the
plaintiff was not injured thereby’ ” (Gagnon, 90 AD3d at 1605). The
expert affidavits submitted by those defendants in support of their
motion “ ‘fail[ed] to address each of the specific factual claims of
negligence raised in plaintiff’s bill of particulars, [and thus]
th[ose] affidavit[s are] insufficient to support a motion for summary
judgment as a matter of law’ ” (id.; see Humphrey v Gardner, 81 AD3d
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1257, 1258).
Entered: June 15, 2012 Frances E. Cafarell
Clerk of the Court