Wilcox v. Winter

• Decision Date: 12 April 2001
• Citation: 722 N.Y.S.2d 836,282 AD2d 862
• Parties: (A.D. 3 Dept. 2001) DOROTHEA WILCOX, Individually and as Administrator of the Estate of ROBERT W. WILCOX SR., Deceased, Respondent, v DUNCAN F. WINTER, Appellant, et al., Defendant. 88453 : THIRD JUDICIAL DEPARTMENT
• Court: New York Supreme Court — Appellate Division

Page 836

722 N.Y.S.2d 836 (A.D. 3 Dept. 2001)

DOROTHEA WILCOX, Individually and as Administrator of the Estate of ROBERT W. WILCOX SR., Deceased, Respondent, v DUNCAN F. WINTER, Appellant, et al., Defendant.

88453

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION: THIRD JUDICIAL DEPARTMENT

April 12, 2001

Carter, Conboy, Case, Blackmore, Maloney & Laird (Nancy May-Skinner of counsel), Albany, for appellant.

O'Connell & Aronowitz (Tina Chericoni-Versaci of counsel), Albany, for respondent.

Before: Mercure, J.P., Peters, Spain, Carpinello and Rose, JJ.

Carpinello, J.

Appeal from an order of the Supreme Court (Ceresia Jr., J.), entered June 1, 2000 in Rensselaer County, which, upon renewal, denied defendant Duncan F. Winter's motion for summary judgment dismissing the complaint against him.

Plaintiff is the widow of Robert W. Wilcox Sr., as well as the administrator of his estate. This medical malpractice action stems from the ophthalmological treatment of Wilcox by defendant Duncan F. Winter (hereinafter defendant) between January 1992 and December 1992. Wilcox presented himself to defendant with complaints of eye tearing, inflammation, discomfort and loss of vision in both eyes, particularly his left eye. Plaintiff maintains that defendant committed malpractice in failing to exhaust all drug therapy options to address Wilcox's condition before resorting to a lens replacement surgery in September 1992. In addition, plaintiff contends that defendant also committed malpractice in failing to control Wilcox's iritis (eye inflamation) before that surgery despite the substantial risk of postsurgical persistent iritis, a condition which can occur when an eye is operated upon while in an inflamed condition. According to plaintiff, these deviations resulted in chronic inflamation in Wilcox's left eye.

When defendant first moved for summary judgment, Supreme Court granted the motion because plaintiff failed to submit an unredacted copy of her expert witness affidavit to the court for its in camera review. Shortly thereafter, plaintiff sought renewal and submitted the unredacted copy to the court. In his attorney affidavit on the renewal application, plaintiff's counsel averred that he had redacted the expert affidavit in reliance on CPLR 3101 and acknowledged that the failure to submit an unredacted version to the court was "through mere inadvertence and mistake on [his] part". Supreme Court granted the motion to renew finding a reasonable excuse for the error and, turning to the merits, denied defendant's motion for summary judgment finding that plaintiff's expert had raised questions of fact. Defendant appeals.

We are unable to conclude that Supreme Court abused its discretion in granting plaintiff's motion to renew. There is no real dispute that the expert's opinion was actually in existence and executed in proper form when plaintiff originally opposed defendant's motion for summary judgment, that is, the opinion was set forth in an affidavit signed and sworn to by the expert before a notary public, thereby constituting competent evidence; however, because the unredacted version was not submitted for the court's in camera review, it could not verify same (cf., Palo v Latt, 270 A.D.2d 323, lv dismissed 95 N.Y.2d 849 [affirmation of an expert unauthorized to practice medicine in this State does not constitute competent evidence]; Pichardo v Blum, 267 A.D.2d 441 [affirmation of a chiropractor does not constitute competent evidence]; Doumanis v Conzo, 265 A.D.2d 296 [affirmation of a chiropractor does not constitute competent evidence]; Stuart v Ellis Hosp., 198 A.D.2d 559 [...