. By notice of cross motion dated January 10, 2012, HSS moved for summary judgment and dismissal, relying on HJD's expert's affidavit and that of defendant Girardi. Neither the motion court nor the majority identifies any prejudice that was incurred by any party due to HSS's motion that might warrant requiring HSS to forfeit summary determination. Logically, if plaintiff did not sustain injury as a result of HJD's February 2005 decision, it follows that he did not sustain injury as a result of the similar December 2004 determination, approximately 2 months earlier, by HSS physicians to forego surgery, especially in light of plaintiff's long history of [*13]cervical disc disease. The plaintiff's expert's opinion is equally conclusory whether it is applied to the asserted negligence of either [*18]facility, and if it does not suffice to sustain the action as against HJD, it does not suffice to sustain the action as against HSS. hilton houston address. Particularly absent from the discourse is any consideration of the significant burden to be imposed on the court in presiding over a trial against HSS as opposed to proceeding summarily by way of motion. Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". In opposition plaintiff's expert did not offer an opinion as to what specific injury plaintiff endured as a result of HJD's decision not to perform surgery and made only broad conjectures which were insufficient to defeat HJD's motion (see Foster-Sturrup v Long, 95 AD3d 726 [1st Dept 2012]; Callistro v Bebbington, 94 AD3d 408 [1st Dept 2012], affd 20 NY3d 945 [2012]). Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. World-Renowned Experts Focused on You As leaders in the field, the doctors at HSS Florida have years of experience in caring for people with all types of orthopedic conditions, from persistent knee pain to shoulder injuries. Even if we were to find that the Court of Appeals intended for an exception to be carved out of Brill for incorrectly labeled "me too cross motions," that is, motions relying on the arguments and evidence of the originally filed motions, to the extent HSS's motion against a nonmoving party can be properly considered such a motion, the motion court correctly found that it is not merely a duplication of HJD's timely motion. All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P.TOM, J.P. (dissenting in part). 2013 NY Slip Op 08548 Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J. Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. On the merits, discounting the supporting opinion of plaintiff's expert as conclusory, the majority finds that the evidence demonstrates that plaintiff suffered no injury as a result of HJD's February 2005 determination that surgical intervention was unwarranted. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. FIND A DOCTOR. Dr. Cross is one of the most pleasant medical providers that I have ever come in contact with. Jewish-Hillside Med. 212.606.1823 212.734.3833 (fax) www.hss.edu alumni@hss.edu. In February 2005, plaintiff sought treatment at defendant New York University Medical Center Hospital for Joint Diseases (HJD). Moreover, "because of a phenomenon called rebound myelopathy, an operation . It contends that in the interest of judicial economy we should not depart from "prior authority" that affords the court discretion to entertain a "marginally late filing" when there is merit to the application and no prejudice has been demonstrated, citing Burns v Gonzalez (307 AD2d 863 [1st Dept 2003]), and Garrison v City of New York (300 AD2d 14 [1st Dept 2002], lv denied 99 NY2d 510 [2003]). Find Hospital for Special Surgery on the . Orthopaedic Research Society, Make an appointment with In support of its motion, HSS even relies on the same affidavit by Dr. Olsewski submitted in support of HJD's motion. Altschuler, in turn, relied on a pre-Brill decision, James v Jamie Towers Hous. Cross, MD. The motion court also correctly denied summary judgment to HSS because its motion was untimely made without any explanation for its untimeliness, let alone good cause (see CPLR 3212[a]). Location in NY, NJ, CT and Florida. Dr. Michael B. Cross's office location Michael B. Sign up for our free summaries and get the latest delivered directly to you. In particular, the records suggest that HSS believed surgery was appropriate and helpful in as early as 2003, surgery is repeatedly mentioned in the records of 2004, and plaintiff believed that surgery had been scheduled. You can explore additional available newsletters here. With the advantage of hindsight, the doctor offers that "[w]hile further diagnostic studies were not inappropriate, they did not contribute any substantial information which would alter the indicated treatment." The notes also indicate that this doctor explained to plaintiff that the reason to do surgery would be to prevent worsening of his symptoms. The problem in the case at bar is that HSS's motion, in addition to being untimely, is not a true cross motion. According to Dr. Olsewski, the best case scenario "was to stop further progression of the cervical myelopathy"; the worst could have resulted in permanent paralysis or death, risks "well beyond the standard. Time Program Topic Faculty; Orthopaedic Summit. He further opined that there was no identifiable injury sustained in the four-month period between plaintiff's first visit at HJD and when he first went to Mt. The motion by HSS was submitted shortly after the end of the holiday season on January 10, 2012, and the respective motions were finally decided by the motion court on July 16, 2012, over seven months later. Plaintiff continued to complain of cervical and lumbar discomfort and worsening of the pre-existing weakness in his right upper extremity. The course adopted by plaintiff of locating a medical team possessing the requisite skills at a hospital equipped with the appropriate facilities represents a seemingly optimal outcome which, as a matter of policy, should not be compromised by the threat of litigation. Visit Website. Michael B. According to plaintiff, he understood that surgery would be performed in late December, and he began obtaining the necessary medical clearances. New York County (Alice Schlesinger, J. If you know this doctor and/or would like to share more about his good work please feel free to add a comment below. New York, NY, 10021. Some decisions also reason that because CPLR 3212(b) gives the court the power to search the record and grant summary judgment to any party without the necessity of a cross motion, the court may address an untimely cross motion at least as to the causes of action or issues that are the subject of the timely motion (see Filannino, 34 AD3d at 281, citing Dunham v Hilco Constr. On November 11, 2011, HJD moved for summary judgment, making its motion returnable on December 14, 2011. [*9]. Sinai where plaintiff later underwent a two stage revision cervical laminectomy with fusion. Dr. Cross is board-certified with several association memberships, including the American Academy of Orthopaedic Surgeons, the New York State Society of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, the Orthopaedic Research Society, and the Musculoskeletal Infection Society. Sinai. Footnote 1:Girardi testified that the notation that he and Frelinghuysen had recommended any particular surgery was "incorrect." Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. As to the procedural issue raised, the majority has devised a solution to a problem recognized neither by the Legislature nor the Court of Appeals. 535 E 70th St . Cross, MD. We therefore affirm the branch of the motion court's order which denied HSS summary judgment as untimely made without consideration of its merits. He currently practices at Hospital for Special Surgery and is affiliated with Hospital For Special Surgery. He then attended medical school at Vanderbilt University, graduating in 2006. Nonmovants will suffer no prejudice. To the extent HSS's motion was directed at the complaint, as opposed to any cross claims by HJD, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The result will be judicial economy, as well as lawyerly economy. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. Finally, the majority adopts the trial court's conclusion that the expert's opinion is imprecise with respect to the nature of the alleged deterioration in plaintiff's condition and the extent to which each hospital bears responsibility. Unlike the dissent, we do not find that a straightforward interpretation of the statute, or Brill, leads to "absurd and unintended consequences," especially as the Court of Appeals acknowledges in Brill that if the strictures of CPLR 3212(a) are applied "as written and intended," there may be situations where a meritorious summary judgment motion may be [*8]denied, "burdening the litigants and trial calendar with a case that in fact leaves nothing to try" as was the result in Brill (2 NY3d at 653). HSS also argued that the claim of lack of informed consent should be dismissed, given that no procedure requiring consent had been performed. Co., 3 NY3d 725 [2004], citing Brill [denying untimely filed summary judgment motion because although the plaintiff argued she had meritorious case, no reasonable excuse was provided as to the motion's late filing]; see also Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471 [1st Dept 2013] [upholding order striking answer where the defendant offered no reasonable excuse for its failure to comply with discovery order and provide a meritorious defense]). Accordingly, the order should be modified to the extent of granting defendant HSS's motion for summary judgment. Rote application of the summary judgment provision, which permits the court to "set a date after which no such motion may be made," leads to the result advocated by the majority strict rejection of the motion as untimely without taking into consideration the circumstances of the case, relegating the moving party to litigating its position at trial. In Brill, the City of New York moved for summary judgment on the basis that it never had notice of the defect and therefore could not be liable for the plaintiff's personal injuries by law. The Best of the Best in Orthopedic Surgery. Sinai. Plaintiff commenced his lawsuit in May 2007, claiming medical malpractice and failure to secure informed consent. Both HSS and HJD established their prima facie entitlement to summary judgment, proffering evidence that plaintiff did not sustain any injury resulting from the respective institutions' independent decisions to recommend against further surgery. Skip to main content. After residency, Dr. Cross completed a fellowship in Adult Reconstruction at Rush University Medical Center, where he won the Jorge O. Galante, MD Fellow Research Award. Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]). An MRI taken of his right shoulder in May 2005 showed "severe atrophy" of certain muscles and "mild atrophy" of other muscles, "likely due to the patient's cervical myelomalacia." Mon 7:00 am - 6:00 pm. The dissent's approach of judging a motion's merits without consideration of why it was untimely, can only lead to uncertainty and additional litigation as motions clearly barred by Brill become arguably permissible because one of the litigants perceives the motion to have merit and perceives no prejudice to the other side.