Feliciano v. New York City Health & Hospitals Corp.

538 Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 11, 2008, which, in this medical malpractice action, inter alia, granted defendants’ motion for summary judgment dismissing the complaint, unanimously affirmed, without costs. The motion court properly determined that in opposition to defendants’ prima facie showing that they had not departed from good and accepted medical standards in their care and treatment of plaintiffs wrist injury, plaintiff did not offer any evidence to raise a triable question of fact as to defendants’ possible negligence or the lack of informed consent. Although plaintiff contends that the supplemental affirmation of defendants’ expert physician, submitted in reply to plaintiffs opposition, improperly introduced a new argument in support of summary judgment dismissal, the reply affirmation was appropriate since “defendants’ arguments could not have been submitted at an earlier juncture because of the indefiniteness of plaintiffs initial pleading” (Held v Kaufman, 91 NY2d 425, 430 [1998]; see also Home Ins. Co. v Leprino Foods Co., 7 AD3d 471 [2004]). Indeed, not only did plaintiff’s expert raise a new theory of medical malpractice in the opposing affirmation, but did so in disregard of clear medical evidence that plaintiff did not suffer from that condition (see Moore v New York Med. Group, P.C., 44 AD3d 393, 395-396 [2007], lv dismissed 10 NY3d 740 [2008]). Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Renwick, JJ.