CPLR § 3101 Scope of disclosure
(d) Trial preparation
Howard v Kennedy, 2009 NY Slip Op 02326 (App. Div., 2nd, 2009)
"Summary judgment may not be awarded in a medical malpractice action
where the parties adduce conflicting opinions of medical experts" (Shields v Baktidy, 11
AD3d at 672). Accordingly, the Supreme Court correctly denied the
appellants' motions for summary judgment dismissing the complaint
insofar as asserted against them.
Contrary to the appellants'
contention, the Supreme Court did not err in considering the affidavit
of the plaintiffs' expert, despite the plaintiffs' alleged failure to
comply with CPLR 3101(d)(1). The Supreme Court noted that there was a
"factual dispute" as to whether the plaintiffs had in fact complied,
and its decision to consider the affidavit solely for purposes of
summary judgment was a provident exercise of discretion (see Simpson v Tenore & Guglielmo, 287 AD2d 613, 613; cf. Construction by Singletree, Inc. v Lowe, 55 AD3d 861).