Summary judgment motions by defendants have become somewhat routine in medical malpractice actions. Not infrequently, the evidence and applicable standards of care offer little or nothing to justify them. Opposing such motions can be costly and time consuming, necessitating a detailed description of the evidence and careful expert analysis. Often, the determination of whether the motion will be granted turns on the sufficiency of expert opinions contained in affidavits or affirmations submitted in opposition. When such an opinion is deemed inadequate to establish issues of fact that require denial of the motion, we frequently find the court describing it as conclusory or speculative. However, attempting to discern why an expert’s opinion is regarded as deficient can be confounding.

Recently, in Brooks v. April, ___ N.Y.3d 564___, 2018 WL 2931000, the Court of Appeals reversed a decision by a divided Appellate Division in which the majority granted summary judgment to a defendant doctor on the ground that the expert affirmation submitted in opposition was insufficient to establish issues of fact. The Court of Appeals’ memorandum decision is short and to the point, stating only that the plaintiffs’ submissions rebutted the defendants’ prima facie showing. However, a review of the expert affirmations submitted in support of, and opposition to, the motion, along with the Appellate Division majority and dissent and the result in the Court of Appeals, may help shed light on expert opinion that is sufficient to defeat summary judgment.