Justice Lester Adler
Mobiglia plaintiffs sued defendants doctors for medical malpractice alleging they departed from accepted practice in her treatment. They claimed injury to Mobiglia, including a termination of a subsequent pregnancy and total hysterectomy. Defendants moved for summary judgment claiming their treatment was within good and accepted standards of medical care, and was not a proximate cause of the loss of the pregnancy or hysterectomy. Plaintiffs argued as defendants failed to disclose the identity of their expert before filing a note of issue, the court should not consider the affirmation. The Appellate Division held that disclosure of an expert after filing a note of issue and certificate of readiness did not, in itself, render the disclosure untimely. The court noted as the motion was timely and plaintiffs did not claim prejudice, it would consider the defendants’ expert’s affirmation. Upon same, it ruled the doctors made a prima facie showing of entitlement to judgment that their treatment of Mobiglia did not depart from good and accepted standards. Yet, plaintiffs’ expert’s affidavit raised a triable issue of fact, and the court noted conflicting medical expert opinions were credibility issues that could only be resolved by a jury, denying summary judgment.
