Correcting an Expert Affirmation Does Not Warrant Renewal Unless It Would Change the Result

1. Appellate Review Survived the Dismissal of the Separate Order Appeal

Under CPLR 5501(a)(1) and Matter of Aho, 39 NY2d 241, 248, entry of the judgment ended the plaintiff’s right to pursue a separate appeal from the intermediate renewal order. That procedural consequence did not prevent consideration of the renewal issues: they were brought up for review on the judgment appeal.

The distinction matters because dismissal of the order appeal was not a refusal to consider the plaintiff’s substantive arguments. The court considered them through the procedurally proper appeal.

2. Renewal Requires Both an Excusable Omission and Outcome-Changing Material

CPLR 2221(e)(2) and (3) requires new facts not offered on the original motion that would change the prior determination, together with a reasonable justification for failing to present them earlier. The requirements are cumulative.

The court applied a practical understanding of “new facts.” Material need not describe a newly occurring event or a previously unknown medical circumstance. Facts contained in a document previously rejected because of its inadmissible form may qualify when presented in a corrected document.

Here, the corrected affirmation identified the expert, included his signature, and complied with CPLR 2106. Those corrections satisfied the new-material component. Counsel’s explanation of inadvertence also supplied a reasonable justification under the circumstances.

Nevertheless, those conclusions did not establish entitlement to renewal. The decisive question remained whether considering the corrected affirmation would alter the summary judgment result. Because the affirmation remained substantively inadequate, the answer was no. The appellate court therefore held that Supreme Court providently exercised its discretion in denying renewal.

This reasoning avoids two extremes: treating every defective submission as permanently incurable, and treating correction of a formal defect as an automatic right to reopen a determination.

3. The Hospital Satisfied Its Initial Summary Judgment Burden

A medical-malpractice claim requires a departure from accepted medical practice and a causal connection between that departure and the injury. A defendant seeking summary judgment must initially demonstrate either that no departure occurred or that any departure did not proximately cause the claimed injury.

The hospital submitted three expert affirmations. One expert was board certified in internal medicine, pulmonary disease, and critical care medicine and routinely treated emergency-department patients. Based on the medical records, deposition testimony, and pleadings, the experts concluded that the hospital neither departed from accepted practice nor caused or contributed to the decedent’s injuries.

The court found this sufficient to establish the hospital’s prima facie entitlement to judgment. The burden therefore shifted to the plaintiff to produce competent evidence creating a genuine factual dispute concerning the elements the hospital had addressed.

4. The Plaintiff’s Expert Had Two Distinct Substantive Deficiencies

Insufficient foundation for opinions outside the demonstrated specialty

The plaintiff’s expert was a board-certified internist with a subspecialty in cardiology. The affirmation did not establish specific training or expertise in pulmonology, infectious disease, critical care medicine, or emergency medicine. Nor did it explain how the expert had become familiar with the standards governing the hospital’s assessment of sepsis and timing of intubation.

The court did not impose an absolute rule that only an identically specialized physician may testify. Rather, a physician offering opinions outside a demonstrated specialty must establish a foundation supporting their reliability. Without that foundation, the opinion lacked probative value.

Conclusory reasoning and inadequate engagement with the defense evidence

The affirmation also failed to address specific assertions made by the hospital’s experts, offered speculative or conclusory opinions, and lacked adequate support in the record. These were additional deficiencies beyond the expert’s qualifications.

An opposing expert must do more than announce disagreement. The expert must identify the relevant evidence, explain the medical reasoning, and respond to the defense’s material assertions. Thus, even a properly signed affirmation from an adequately qualified physician does not necessarily create a triable issue.

The holding concerns the sufficiency of the plaintiff’s evidentiary response at summary judgment; it is not a general declaration that the alleged treatment failures could never constitute malpractice.

5. Precedents Cited and Their Influence

The opinion uses the following authorities to construct its procedural and evidentiary analysis. Their significance is the proposition for which the court cited them; the opinion does not recount their underlying factual histories.

Matter of Aho, 39 NY2d 241, 248

Supplies the appellate framework: the final judgment terminates a direct appeal from the intermediate order, while the relevant issues remain reviewable through the judgment appeal.

Defina v Daniel, 140 AD3d 825, 826

Supports treating facts contained in a previously inadmissible document as new facts when the document is properly resubmitted. It prevents an unduly narrow interpretation of CPLR 2221(e).

Hackney v Monge, 103 AD3d 844, 845

Supports both the corrected-document approach and the conclusion that inadvertent law office failure can provide a reasonable justification for the original omission. Its application was expressly dependent on the circumstances.

Rico v New York Methodist Hosp., 242 AD3d 787, 788–789

Serves as the principal substantive authority. The court relies on it for the elements of malpractice, the defendant’s initial summary judgment burden, the inadequacy of conclusory allegations, the need for record-based expert reasoning, and the foundation required for cross-specialty opinions. It also supports the court’s application of those rules to both sides’ expert submissions.

Kunwar v Northwell Health, 229 AD3d 528, 532

Reinforces that malpractice requires both a departure from accepted practice and proximate causation. These elements define what the parties’ expert evidence must address.

Williams v Levine, 238 AD3d 960, 961

Supports the rule that a defendant may satisfy its initial burden by establishing either the absence of a departure or the absence of causation.

Piazza v NYU Hosps. Ctr., 208 AD3d 525, 526

Establishes the burden-shifting consequence of a sufficient defense submission: the plaintiff must identify a triable issue concerning the elements on which the defendant met its initial burden.

Donnelly v Parikh, 150 AD3d 820, 822

Provides additional support for that element-specific burden-shifting framework, rather than requiring a plaintiff to respond indiscriminately to every possible issue.

Paxton v Sosnowski, 238 AD3d 779, 782

Supports rejection of general, conclusory, or speculative malpractice assertions and reinforces the finding that the plaintiff’s affirmation did not supply a sufficient evidentiary response.

DePasquale v Staten Is. Univ. Hosp., 244 AD3d 1063, 1064

Supports requiring an opposing expert to engage with the moving experts’ specific assertions, explain the reasoning, and cite supporting record evidence.

Pinnock v Mercy Med. Ctr., 180 AD3d 1088, 1090–1091

Supplies the foundational requirement for a physician offering opinions outside the physician’s specialty. The focus is demonstrated reliability, not specialty labels alone.

Pettway v Vorobyeva, 202 AD3d 1116, 1117

Establishes the consequence of failing to supply that foundation: the opinion has no probative value and cannot satisfy the party’s summary judgment burden.

Corujo v Caputo, 224 AD3d 729, 732

Supports both the sufficiency of the hospital’s expert showing and the insufficiency of an opposing expert’s unexplained familiarity with the relevant standards of care.

Landberg v City of New York, ___ AD3d ___, 2026 NY Slip Op 03935, *6

Supports the authority to impose financial sanctions on an attorney for misrepresentations concerning citations in a brief.

Matter of Julien v Arthur, ___ AD3d ___, 2026 NY Slip Op 03308, *2

Provides additional authority for citation-related sanctions and underpins the court’s decision to initiate a separate inquiry into counsel’s conduct.

6. Citation Misrepresentations and the Sanctions Inquiry

Under 22 NYCRR 130-1.1(a), a court may impose financial sanctions for frivolous conduct. The court identified apparent conduct falling within two definitions of frivolousness: conduct completely without legal merit and unsupported by a reasonable argument for changing existing law, under subsection (c)(1), and assertions of materially false factual statements, under subsection (c)(3).

The identified citation misrepresentations concerned:

• Barbuto v Winthrop Univ. Hosp., on page 18 of the brief;
• Verrino v HealthQuest Sys., on page 20;
• Renna v Gullo, in the table of authorities; and
• Rubino v Krainski, in the table of authorities.

These four cases occupy a different role from the precedents supporting the judgment: they are the subjects of the alleged citation misrepresentations, not authorities the court adopted in resolving the malpractice issues.

The opinion does not explain the precise defect in each citation or identify how the errors originated. It therefore does not support attributing them to fabricated authorities, artificial intelligence, or any particular research method.

Importantly, the court stated that counsel appeared to have engaged in frivolous conduct and requested submissions before deciding whether sanctions or additional costs were appropriate. The show-cause direction was a preliminary procedural step, not a final sanctions award. The ordinary appellate costs already awarded to the hospital were separate.