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130 A.D.2d 649

Sciascia v. Nevins

Appellate Division of the Supreme Court of the State of New York · decided 1987-05-18

Decided 1987-05-18

Mangano, J. P., concurs in the result, with the following memorandum:

¶1In my view, the court erred in granting the plaintiffs motion, which was, in effect, for renewal and reconsideration of the motion of the defendant Stuart T. Nevins for summary judgment dismissing the complaint as against him, which was granted by a prior order entered February 21, 1986. The plaintiffs motion to renew was essentially based on an affidavit from her expert, Dr. Peter Lichtenfeld. The record indicates that the plaintiffs initial opposition papers to the defendant Nevins’ motion for summary judgment, consisted, inter alia, of an affidavit from Dr. Lichtenfeld, to the effect that Dr. Nevins’ conduct constituted a departure from "good and customary practice”. Since Dr. Lichtenfeld made no mention in his first affidavit of the issue of causation, the defendant Nevins’ motion for summary judgment was properly granted by the court in its order entered February 21, 1986. In her motion to renew, the plaintiff submitted a second *651affidavit from Dr. Lichtenfeld, which cured the defect in his first affidavit. However, this court has condemned and rejected attempts by parties to renew, in the area of summary judgment, when the new material consists merely of embellished medical allegations from the same expert utilized by the party in the original motion (see, Green v Wright, 126 AD2d 574; Echeverri v Flushing Hosp. & Med. Center, 123 AD2d 818; see also, Rose v La Joux, 93 AD2d 817).

¶2However, since the defendant Nevins has not cross-appealed from so much of the order entered June 13, 1986, as granted the plaintiff’s motion to renew, I am constrained to concur in the result reached by the majority.

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