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DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined that defendant doctor’s motion for summary judgment on statute of limitations grounds in this medical malpractice action should not have been granted. If the action had sounded in battery, it would have been untimely. But the doctor’s papers did not demonstrate the action sounded in battery, as opposed to medical malpractice. Therefore the motion should have been denied without considering plaintiff’s papers, on which defendant relied for the “battery” argument:

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It is well established that “[a] party moving for summary judgment must demonstrate that the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment’ in the moving party’s favor” … . Thus, “the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” … . “This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party” … , “and every available inference must be drawn in the [non-moving party’s] favor” … . “The moving party’s [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers’ ” … . Palumbo v Bristol-Myers Squibb Co., 2018 NY Slip Op 00749, Fourth Dept 2-2-18

CIVIL PROCEDURE (SUMMARY JUDGMENT MOTIONS, DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT))/SUMMARY JUDGMENT (CIVIL PROCEDURE, ANALYSIS OF SUMMARY JUDGMENT MOTIONS, DEFENDANT DOCTOR’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RELIED ON PLAINTIFF’S SUBMISSIONS, WHICH SHOULD NOT HAVE BEEN CONSIDERED, A RARE EXPLANATION OF HOW APPELLATE COURTS ANALYZE SUMMARY JUDGMENT MOTIONS (FOURTH DEPT))

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SEVERE ABUSE FINDING SUPPORTED BY FATHER’S FAILURE TO SEEK IMMEDIATE MEDICAL CARE FOR THE SERIOUSLY INJURED CHILD (FOURTH DEPT).
THE PLACEMENT OF THE LADDER WAS DEEMED THE CAUSE OF PLAINTIFF’S FALL AND PLAINTIFF HAD PLACED THE LADDER, THEREFORE PLAINTIFF’S ACTIONS WERE DEEMED THE SOLE PROXIMATE CAUSE OF HIS INJURY PRECLUDING RECOVERY IN THIS LABOR LAW 240 (1) CASE (FOURTH DEPT).
THE APPEAL WAS HELD IN ABEYANCE AND THE MATTER WAS SENT BACK FOR A RECONSTRUCTION HEARING ON WHETHER DEFENSE COUNSEL CONSENTED TO ANNOTATIONS ON THE VERDICT SHEET; THE RECONSTRUCTION HEARING WAS HELD BUT SUPREME COURT DID NOT MAKE A RULING; THE MATTER WAS REMITTED AGAIN FOR THE RULING (FOURTH DEPT). ​
ALTHOUGH THE PERSISTENT FELONY OFFENDER STATUS WAS AUTHORIZED AND LEGAL, THE APPELLATE DIVISION EXERCISED ITS DISCRETION TO FIND DEFENDANT SHOULD NOT HAVE BEEN SENTENCED AS A PERSISTENT FELONY OFFENDER AND REDUCED HIS SENTENCE (FOURTH DEPT).
COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF CONTRACT, NEGLIGENT HIRING AND SUPERVISION OR PRIMA FACIE TORT (FOURTH DEPT).
THERE WAS NO EVIDENCE SUBSTANTIATING THE PURPORTED “OFF THE RECORD” STIPULATION OF SETTLEMENT; THE TERMS OF THE SETTLEMENT AGREEMENT WERE NEVER FILED WITH THE COUNTY CLERK; A PRETRIAL CONFERENCE WITH THE JUDGE’S CLERK DOES NOT MEET THE “OPEN COURT” REQUIREMENT FOR A STIPULATION OF SETTLEMENT (FOURTH DEPT).
PLAINTIFF’S EXPERT’S AFFIDAVIT DID NOT DEMONSTRATE A CAUSAL RELATIONSHIP BETWEEN THE ALLEGED DEVIATION FROM THE STANDARD OF CARE AND PLAINTIFF’S INJURY WITH RESPECT TO ONE OF THE DEFENDANT DOCTORS, THE DOCTOR’S SUMMARY JUDGMENT MOTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
NOTICE OF INTENTION INSUFFICIENTLY SPECIFIC ABOUT THE TIME AND PLACE OF THE ALLEGED SEXUAL HARASSMENT AND EMPLOYMENT DISCRIMINATION, CLAIMS PROPERLY DISMISSED (FOURTH DEPT).

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