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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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