Key Takeaway
Court affirms opposing expert affidavit sufficient to defeat summary judgment in medical malpractice when expert has proper credentials and specialty certification.
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Plourd v Sidoti, 2010 NY Slip Op 00056 (3d Dept. 2010)
“Plaintiff thereafter commenced this action, alleging that the failure of the emergency room physician, defendant Louis Sidoti, to diagnose the fracture caused her unnecessary pain and led to the need for surgery….”
“efendants met their initial burden of demonstrating a prima facie entitlement to summary judgment as a matter of law…. plaintiff submitted the affidavit of G. Richard Braen, a physician licensed to practice in New York who is board certified in internal medicine and currently employed in the field of emergency medicine. Initially, given that the alleged malpractice occurred in the context of emergency medicine, Braen’s board certification and his employment support an inference that his expert opinion was a reliable one, “and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility” (Bell v Ellis Hosp., 50 AD3d at 1242; see Borawski v Huang, 34 AD3d 409, 410 ).”
So in another case, an opposing expert’s affirmation will be sufficient to raise an issue of fact when the expert is of the same specialty as that of the moving expert. Of course, the moving expert has to be of the correct specialty otherwise the burden will never shift to the non-movant to raise an issue of fact.
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And, the lack of skill and experience merely goes to the weight of the evidence, provided a threshold showing is made that the expert is appropriately credentialed.
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Legal Update (February 2026): Since this 2010 decision, New York courts have continued to refine standards for expert qualification in medical malpractice cases, and the Civil Practice Law and Rules governing expert testimony and summary judgment procedures may have been amended. Practitioners should verify current provisions regarding expert witness qualifications, particularly board certification requirements and specialty matching standards, as appellate decisions and legislative changes may have modified these evidentiary standards.
Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Evidentiary Issues in New York Litigation
The rules of evidence determine what information a court or arbitrator may consider in deciding a case. In New York no-fault and personal injury practice, evidentiary issues arise constantly — from the admissibility of business records and medical reports to the foundation requirements for expert testimony and the application of hearsay exceptions. These articles examine how New York courts apply evidentiary rules in insurance and injury litigation, with practical guidance for building admissible evidence at every stage of a case.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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