Vega v. Mount Sinai-Nyu Medical Center & Health System

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered March 26, 2003, granting defendants’ motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motion with respect to defendants Babu and Mount Sinai-NYU Medical Center, and the complaint reinstated as to those defendants, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered December 5, 2003, which, to the extent appealable, denied plaintiffs’ motion for renewal, unanimously dismissed, without costs, as academic, in light of our disposition of the appeal from the prior order.

Plaintiff Wilfredo Vega was never treated by defendant Dr. Benjamin and there is no evidence of any relationship between Benjamin and plaintiffs surgeon, defendant Dr. Babu, such as would support imputing liability to Benjamin for injuries allegedly suffered by plaintiff in consequence of Babu’s surgery.

The affirmations of plaintiffs’ experts submitted in opposition to defendants’ summary judgment motion sufficed to raise triable issues as to whether the surgery performed by defendant Babu was necessary and whether the deterioration in plaintiffs condition in the aftermath of that surgery was attributable to the allegedly unnecessary surgical intervention. The motion court’s refusal to consider these affirmations simply because the names and signatures had been redacted to protect the identity of the affiants, as is permitted by CPLR 3101 (d) (1) (i), was unwarranted. At the very least, plaintiffs should have been afforded an opportunity to submit the affirmations unredacted for in camera review in accordance with the practice ordinarily employed to accommodate the competing purposes of CPLR 3101 (d) (1) (i) and 3121 (b) (see Napierski v Finn, 229 AD2d 869 [1996]; and see Ryan v Michelsen, 241 AD2d 434, 436-437 [1997]). Concur—Sullivan, J.P, Lerner, Marlow and Catterson, JJ.