Catanese v. Furman

Green, J.P., and Gorski, J. (dissenting).

We respectfully dissent in appeal Nos. 1 and 2. In our view, Supreme Court abused its discretion in refusing to permit plaintiffs to correct the technical defect of having submitted an affirmation rather than a sworn affidavit of their expert physician, who was not “authorized by law to practice in” New York as required by CPLR 2106. In Sandoro v Andzel (307 AD2d 706 [2003]), this Court allowed the plaintiff 30 days to correct the same defect. In our view, the same allowance should be made herein, inasmuch as we further believe that the disputed affirmation would have been sufficient to raise triable issues of fact with respect to the merits of this medical malpractice action had it been in proper evidentiary form. Thus, we would reverse the order in appeal No. 1, deny the motion of defendants Alberto C. Gutierrez, M.D. and Alberto C. Gutierrez, M.D., PC. and reinstate the complaint and cross claims against them, and we would dismiss the appeal from the order in appeal No. 2 as moot. Present—Green, J.P, Hurlbutt, Kehoe, Gorski and Lawton, JJ.