Scarito v St. Joseph Hill Academy, 2009 NY Slip Op 03887 (App. Div., 2nd, 2009)
In opposition, the plaintiff failed to raise a triable issue of fact. In their original opposition papers, the plaintiff submitted an expert affidavit to support their contention that the defendants were negligent in failing to provide a shin guard during the game. The plaintiff’s expert, however, failed to cite to any statute, regulations, or guidelines which stated that shin guards were necessary, and his affidavit was insufficient to raise a triable issue of fact (see Benson v Union Free School Dist. #23, 37 AD3d 748, 749). Additionally, there was no competent proof that there were any FIFA regulations or United States Soccer Federation Laws regarding the use of shin guards which were in effect at the time of the accident. Assuming that such regulations or laws existed at the time of the accident, there was no competent proof that they reflected a generally-accepted standard or practice in middle school settings (see Walker v Commack School Dist., 31 AD3d 752, 753; Capotosto v Roman Catholic Diocese of Rockville Ctr., 2 AD3d 384).
Tropeano v Fang, 2009 NY Slip Op 03893 (App. Div., 2nd, 2009)
The defendant failed to make a prima facie showing of entitlement to judgment as a matter of law with respect to the causes of action alleging injuries to the right eye of the plaintiff Joyceann Tropeano. As relevant to this branch of his motion, the defendant relied upon the affirmation of his expert, Dr. Paul N. Orloff, a physician specializing in ophthalmology, who opined that the only evidence of Joyceann’s claimed vision impairment was her “subjective complaint” and that she was “malingering in her examinations.” However, this affirmation was not sufficient to satisfy the defendant’s initial burden on summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324). Dr. Orloff’s affirmation lacked probative value because he never examined the plaintiff, and his opinion that she was malingering was largely based on the unsigned, unsworn report of another opthamologist (see Ferber v Madorran, 60 AD3d 725; Besso v DeMaggio, 56 AD3d 596, 597). Accordingly, it is unnecessary to assess the sufficiency of the papers the plaintiffs submitted in [*2]opposition (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Vera v Soohoo, 41 AD3d 586, 588).
Ryan v St. Francis Hosp., 2009 NY Slip Op 04045, (App. Div., 2nd, 2009)
The Supreme Court providently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert on the subject of whether the defendant Andrew E. Lituchy was the attending physician of record and in charge of the injured plaintiff’s care during the entire hospitalization on the ground that there were no facts in the record to support the expert’s opinion (see Cassano v Hagstrom, 5 NY2d 643, 646; Martinez v Mullarkey, 41 AD3d 666, 670; Simo v New York City Tr. Auth., 13 AD3d 609, 611).
Under the circumstances, the Supreme Court also providently exercised its discretion in precluding the testimony of the plaintiffs’ proposed expert as to purported departures from the [*2]standard of care by certain nonparty physicians. The plaintiffs failed to give notice prior to trial of the specific subject matter of the expert’s testimony setting forth a different theory of recovery not readily discernable from the plaintiffs’ bill of particulars and the statements in their CPLR 3101(d) responses (see Durant v Shuren, 33 AD3d 843, 844; Dalrymple v Koka, 2 AD3d 769, 771).