Second Department Excuses Failure to Submit Signed Deposition Transcripts in Support of Summary Judgment Motion

In Schwelnus v. Urological Assocs. of L.I., P.C., the Supreme Court denied the defendants’ motion for summary judgment because the deposition transcripts they submitted in support of the motion were unsigned.  The defendants then moved to renew and submitted, among other things, properly executed transcripts and alleged that the failure to submit the transcripts in admissible form was a result of law office failure.  The Supreme Court denied the defendants’ motion, but the Second Department reversed.

In reversing, the Second Department held that “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form.” Because the defendants corrected the inadequacy and provided a reasonable justification for that failure, the Court held that it was an improvident exercise of discretion to deny the defendants’ motion to renew. 

On renewal the Court then granted the defendants' motion for summary judgment holding that the continuous treatment doctrine only applies where there is a continuing course of treatment.  In the absence of some type of treatment, continuing efforts to arrive at a diagnosis or the failure to make a proper diagnosis alone does not constitute continuing treatment.