Opinion
May 27, 1988
Appeal from the Supreme Court, Erie County, Cossell, J.
Present — Dillon, P.J., Denman, Green, Pine and Balio, JJ.
Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: In this malpractice action, plaintiffs allege that the defendant podiatrists, during their treatment of plaintiff Joseph Diviak's foot and related ailments, failed to diagnose an epidermoid tumor in a timely manner. Special Term properly denied summary judgment to defendant Schulefand. In opposition to defendants' motion, plaintiff produced sufficient expert evidence to establish a question of fact whether defendant Schulefand's treatment of plaintiff Joseph Diviak deviated from accepted medical standards (see, Maust v Arseneau, 116 A.D.2d 1012; Robinson v Strong Mem. Hosp., 98 A.D.2d 976). The fact that plaintiff's expert is a podiatrist does not render him incompetent to state his expert opinion of defendants' medical malpractice (see, People v Rice, 159 N.Y. 400, 410; Karasik v Bird, 98 A.D.2d 359, 362-363). Moreover, the failure of plaintiff's expert to state in his original affidavit that defendants' malpractice was a proximate cause of plaintiff's injuries is not determinative because such a causal relationship would be readily apparent to the trier of fact (see, Monahan v Weichert, 82 A.D.2d 102, 107).
Since plaintiff's initial opposition to defendant Schulefand's motion was sufficient, we need not decide the issues raised in defendants' second appeal from an order which granted plaintiffs' motion to renew and adhered to its original decision. We must note, however, that we do not sanction a procedure in which a prevailing party is permitted to renew a motion upon which it has already prevailed, particularly where, as here, the motion to renew was made after defendants filed their notice of appeal from the original order denying their motion for summary judgment. Although Special Term apparently entertained plaintiffs' motion to renew on the basis that the motion had been "allowed" by the judicial administrative officer presiding at the preargument conference, we caution that the rules of this court do not so empower a judicial administrative officer (see, 22 NYCRR 1000.12).
Special Term erred in denying defendant Perillo's motion for summary judgment. This defendant cannot be negligent for delay in the diagnosis of the tumor since Mr. Diviak first discussed his neurological problems with defendant Perillo on November 20, 1978 and a week later defendant Perillo referred Mr. Diviak to a specialist. Moreover, plaintiff's complaint and bill of particulars fail to allege any negligence specifically against defendant Perillo and he may not be held vicariously liable for defendant Schulefand's negligence, if any, simply because the two defendants were coemployees (see, Kavanaugh v Nussbaum, 71 N.Y.2d 535, 545-549; Hill v St. Clare's Hosp., 67 N.Y.2d 72, 79; Connell v Hayden, 83 A.D.2d 30, 49-59; cf., Lanza v Parkeast Hosp., 102 A.D.2d 741).