Wolfson v. Calamel

Order unanimously affirmed with costs. Memorandum: Defendant’s submissions in support of his motion for summary judgment in this medical malpractice action were sufficient to demonstrate his entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320, 324). Defendant tendered evidentiary proof in admissible form to show that his treatment of plaintiff was not negligent and that he properly informed plaintiff that no alternative procedures short of surgery existed to remedy plaintiff’s medical condition. Plaintiff failed to submit any papers in opposition. Thus, Supreme Court properly granted defendant’s motion.

There is no merit to plaintiff’s contention that the court erred in refusing to consider the affidavit of a physiotherapist in opposition to the motion. Although referred to by counsel at the time of argument of the motion, plaintiff did not serve the affidavit on defendant nor provide it to the court in a timely manner. Plaintiff had been granted several adjournments by the court to secure an appropriate affidavit and failed to do so. Thus, it was not an abuse of discretion for the court to determine defendant’s motion on the merits without considering the affidavit.

We find no error in the court’s determination of plaintiff’s motion to settle the record. (Appeal from Order of Supreme Court, Erie County, Wolf, Jr., J. — Summary Judgment.) Present — Denman, P. J., Pine, Balio, Fallon and Davis, JJ.