He submitted the affidavit of his medical expert, Michael J. Murphy, M.D., an orthopedic surgeon practicing in Connecticut. Since trial of this matter was already stayed by HJD's timely motion for summary judgment at the time HSS submitted its marginally late summary judgment motion which raises the same dispositive issue as the timely motion, refusing to entertain the subsequent motion does nothing to avoid the delay of trial and waste of judicial resources, the primary purposes of Brill, by requiring trial of a virtually identical lawsuit ripe for summary disposition. Jewish-Hillside Med. at 236, citing Andrea, Miceli, Brill, and Kihl). Musculoskeletal Infection Society As to HJD, the court found that, "without any doubt, [its] moving papers, primarily through the thorough opinions expressed by [its expert], [made] out a prima facie case for the relief sought." Particularly, the majority holds that the summary judgment motion interposed by HSS was untimely and beyond the motion court's power to entertain pursuant to Brill. On October 1, 2004, plaintiff first met with defendants Peter Frelinghuysen, M.D. HJD met its burden of showing prima facie entitlement to summary judgment, proffering evidence that plaintiff was not caused to suffer any injury between February 2005 when HJD found that surgery was not indicated, and April 2005 when he first consulted with Mt. Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. Strict and rigid application of Brill is even less understandable given the similarity of the grounds advanced by the respective hospitals in support of their summary judgment motions and the ground upon which disposition rests. Co., 89 NY2d 425, 429 [1996]). Health A-Z. Were the motions properly labeled they would not be judicially considered without an explanation for the delay. As this Court recently noted in Williams v New York City Tr. Dr. Anthony Petrizzo of HJD examined plaintiff on February 11, 2005, finding severe upper extremity atrophy, with deltoid strength at 1/5, and 2/5 strength to the biceps. He attended Washington University in St. Louis for his undergraduate education, where he double majored in chemistry and mathematics/statistics and played varsity football. Plaintiff cites no precedent for imposing liability under these circumstances, and no comparable New York case has been located. The le-de-France tramways ( French: Tramways d'le-de-France) is a network of modern tram lines in the le-de-France region of France. Michael B. As the Court of Appeals has admonished, " No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association'" (Matter of Staber v Fidler, 65 NY2d 529, 535 [1985], quoting Dougherty v Equitable Life Assur. Dr. Cross earned his bachelors degree from Washington University in St. Louis in 2002. Cross, MD . This surgeon was submitted to G.O.S. Allowing movants to file untimely, mislabeled "cross motions" without good cause shown for the delay, affords them an unfair and improper advantage. The motion by HJD was submitted on November 11, 2011, three days before the deadline of November 14, 2011 imposed by the motion court under CPLR 3212(a). Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. First of all, under the authority of Brill [2 NY3d 648 (2004)], the cross[]motion was clearly untimely without any explanation, and counsel is simply wrong when he argues that the cross[]motion raises the same issues as the motion timely made by [HJD]. He received his medical degree from Vanderbilt University School of Medicine and has been in practice between 11-20 years.. My stay at the Hotel for Special Surgery was flawless. As most recently articulated in Gibbs: Electrical studies performed on October 26, 2006 revealed no significant change from those done in 2005 although there was evidence of fibrotic changes; [*4]the studies showed the presence of moderate right and mild left carpal tunnel syndrome. Likewise, there is no indication that plaintiff was prepared to undergo the procedure prior to October 2004, when he first consulted with Dr. Freylinghuysen. new york, ny zip 10021-099 phone: (212) 774-2114 fax: (646) 797-8298 The provider's authorized official is Michael B Cross . In that regard, the majority's disposition is antithetical, directing a party to try a case under circumstances to which Brill is inapposite because trial has been delayed not by an eleventh-hour summary judgment motion, but by one that is altogether timely. He met with another HSS doctor on October 22, 2004, who wrote that the plan was to have plaintiff return in November to see Frelinghuysen "for booking of his anterior disc fusion surgery." Under the circumstances presented by this matter, this view constitutes an unnecessarily rigid application of [*14]CPLR 3212(a), contravening the sound policy considerations underlying the decision and the intent expressed by the Legislature in amending the statute. Your email address will not be published. No surgery would have been able to reverse plaintiff's neurological deficits, "which were significant by the time he presented at HJD, and had already existed for many years." Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. The dissent would seemingly limit the reach of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar. He accepts multiple insurance plans, including Medicare. Visit Website. Brill reiterates Kihl's statement that, " [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (2 NY3d at 652-653, quoting Kihl at 123). If you need help finding an appropriate doctor who takes your insurance, contact our HSSConnect at 877.606.1555. Hospital for Special Surgery and the HSS Alumni Association gratefully thank the Autumn Beneit Committee for ongoing support and major funding for several medical education initiatives, including publication of . The undesirable practice sought to be prevented by revision of CPLR 3212(a) is the waste of resources expended in preparation for trial as the result of a belated summary judgment motion staying the proceedings. Finally, we note the dissent's concern that allowing this litigation to proceed based on plaintiff's particular theory of negligence could result in placing surgeons in an impossible situation either of performing a procedure that is deemed ill-advised and being subject to any liability for aggravation of a condition, or declining and being subject to liability for refusing to [*11]assume the risk that the surgery entails. Location in NY, NJ, CT and Florida. [*9]. By making a cross motion, the party saves an extra day in court, and quite possibly the time and trouble of amassing fresh proof, if it happens that all or part of the evidentiary foundation on which the cross motion is based has already been produced for consideration (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1, 2215:2). Opinion by Feinman, J. at 653). Cross is a radiation oncologist. This is clear by tracing Lapin's antecedents. We therefore affirm the branch of the motion court's order which denied HSS summary judgment as untimely made without consideration of its merits. Sinai. Sinai for much of that time. He attended Washington University in St. Louis for his. 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." We help patients restore the quality of life they deserve and desire. The Jewish Hospital 4777 E Galbraith Rd Cincinnati, OH 45236. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. This is also reflected in their individual motion papers. Dr. Murphy conclusively states that plaintiff's condition progressively deteriorated during the period of treatment at defendant hospitals, yet he points to no objective evidence supporting this statement, despite the fact that the record contains numerous diagnostic tests over that period of time. 535 E 70th St . On November 19, 2004, the clinic notes indicate that Frelinghuysen planned to review the patient films with Girardi and "we will plan for an anterior cervical decompression and fusion at a later date." It is true that since Brill was decided, this Court has held, on many occasions, that an untimely but correctly labeled cross motion may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause (see e.g. The majority concludes that summary disposition is precluded by the Court of Appeals' decision in Brill v City of New York (2 NY3d 648 [2004]), without reference to the judicial policy espoused in the opinion. An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). In opposition, Murphy's opinions were "somewhat conclusory." The doctor also noted that plaintiff's "only option" might be a future shoulder arthrodesis "to allow him to have a more functional lifestyle." Acknowledgment Hospital for Special Surgery gratefully thanks the Autumn Benefit Committee for ongoing support and major funding for . Cross M.D - Orthopaedic Surgeon - Home | Facebook Diet & Weight Management Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. While defendants have not raised the question of whether the complaint is actionable, the issue should nevertheless be decided preliminarily. Lapin relied on Altschuler v Gramatan Mgt., Inc. (27 AD3d 304 [1st Dept 2006]), which held it proper to consider the untimely "cross motion," in particular because it was "largely based" on the same arguments raised in the timely motion for summary judgment, and the same findings would apply for both it and the timely motion. Mon 7:00 am - 6:00 pm. Dr. Cross joined HSS as a clinician-scientist and currently has over 55 publications and has received numerous research awards at local, regional, and national levels, including the 2013 Frank Stinchfield Award from the Hip Society and the 2013 OREF/ORS Travel Award in Translational Research from the Orthopaedic Research Society. New York, NY, 10021. Footnote 1: To reiterate, it was the timely motion by HJD that delayed trial, not the motion submitted by HSS while HJD's motion was pending, a situation addressed neither by the statute nor Brill. I obviously highly recommend Dr. Cross and his team. The clinic notes of June 11, 2004 indicate that his "symptoms have progressed with increased right shoulder atrophy"; a new round of studies was scheduled. OrthoIndy Hospital is physician-owned and operated. New York County (Alice Schlesinger, J. 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. Cross, MD. In June 2004, plaintiff returned to HSS with continuing complaints of progressive right shoulder weakness, increased neck pain and decreased balance. 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.
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