Whitaker v. Mercy Hospital — 163 A.D.2d 897

Majority

p. 897

Lori Whitaker, as Administratrix of the Estate of William D. Whitaker, Deceased, Appellant, v Mercy Hospital et al., Defendants, and James Ehinger et al., Respondents.

(Appeal No. 1.)

Order unanimously affirmed without costs. Memorandum: We affirm for reasons stated in the memorandum decision of Supreme Court (Kane, J.). We add only that defendants met their burden on the motions for summary judgment in this medical malpractice action by submitting proof in admissible form showing their entitlement to judgment in their favor and that plaintiff failed to meet her burden in opposition to the motion by the submission of expert medical opinion in admissible form (see, Alvarez v Prospect Hosp., 68 NY2d 320 , 327; Zuckerman v City of New York, 49 NY2d 557 , 563). The unsworn letter submitted by plaintiff was not in admissible form (see, Graves v Rochester Gen. Hosp., 135 AD2d 1130 ). Here, because plaintiff did not rely in good faith on the belief that she was not required to identify her experts, there is no basis for remitting the matter to give plaintiff the opportunity to submit medical evidence in

p. 898

admissible form (see, Maust v Arseneau, 116 AD2d 1012 ). (Appeal from order of Supreme Court, Erie County, Kane, J.— summary judgment.) Present—Boomer, J. P., Green, Balio, Davis and Lowery, JJ.

Cases cited

Alvarez v. Prospect Hospital 68 NY2d 320 N.Y. 1986-11-11 at 327 p. 897
Zuckerman v. City of New York 49 NY2d 557 N.Y. 1980-04-01 at 563 p. 897
Graves v. Rochester General Hospital 135 AD2d 1130 N.Y. App. Div. 1987-12-18 p. 897
Maust v. Arseneau 116 AD2d 1012 N.Y. App. Div. 1986-01-24 p. 898