You are here: / / PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS...
, ,

PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined the hospital’s (Crouse Hospital’s) motion for summary judgment in this medical malpractice action should have been granted. The defendant doctor was not a hospital employee and no hospital employee was named in the complaint or bill of particulars. The plaintiff, in answering the hospital’s summary judgment motion, claimed for the first time that two nurses were negligent. That new theory of recovery could not defeat the motion:

​

Following discovery, the hospital moved for summary judgment dismissing the complaint against it, contending that the physician defendant was not its employee and that the hospital therefore could not be held vicariously liable for his alleged negligence. In opposing the motion, plaintiff did not address the hospital’s contention with respect to the physician defendant’s employment status and instead argued for the first time that two of the hospital’s nurses were negligent and that the hospital was vicariously liable for their actions. In our view, that is a new theory of recovery and thus could not be used by plaintiff to defeat the hospital’s motion … . We note that plaintiff did not move to amend the bill of particulars to allege that the hospital was vicariously liable for the nurses’ negligence. Inasmuch as plaintiff did not dispute that the hospital was not vicariously liable for the alleged negligence of the physician defendant, there was no basis to deny the motion, which we now grant. DeMartino v Kronhaus, 2018 NY Slip Op 00974, Fourth Dept 2-9-18

NEGLIGENCE (MEDICAL MALPRACTICE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE (CIVIL PROCEDURE, PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/CIVIL PROCEDURE (MEDICAL MALPRACTICE,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/SUMMARY JUDGMENT (ANSWERING PAPERS,  PLAINTIFF’S ASSERTION OF A NEW THEORY OF LIABILITY IN THE PAPERS ANSWERING DEFENDANT HOSPITAL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN CONSIDERED, SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

You might also like
ALTHOUGH THE TRUSTEE DID NOT PROVIDE AN ACCOUNTING, HE NEVER REPUDIATED HIS FIDUCIARY DUTIES; THEREFORE THE SIX-YEAR STATUTE OF LIMITATIONS FOR AN ACCOUNTING WAS NOT TRIGGERED (FOURTH DEPT).
DEFENDANTS “EVANGELICAL LUTHERAN CHURCH IN AMERICA (ELCA)” AND “UPSTATE NEW YORK SYNOD OF THE EVANGELICAL LUTHERAN CHURCH IN AMERICA (SYNOD)” HAD THE POWER TO DISCIPLINE AND TERMINATE A PASTOR ACCUSED OF ABUSE; THEREFORE THERE WAS A QUESTION OF FACT WHETHER THOSE DEFENDANTS WERE THE PASTOR’S EMPLOYERS; THE NEGLIGENT HIRING, SUPERVISION AND RETENTION CAUSES OF ACTION SHOULD NOT HAVE BEEN DISMISSED (FOURTH DEPT).
FLIGHT ALONE DID NOT JUSTIFY THE PURSUIT AND SEARCH OF DEFENDANT IN A STREET STOP (FOURTH DEPT).
Visitation with Imprisoned Father Terminated
DEFENDANT IN THIS MANSLAUGHTER CASE WAS THE VICTIM OF DOMESTIC VIOLENCE AND SHOULD HAVE BEEN SENTENCED UNDER THE ALTERNATIVE SENTENCING SCHEME IN THE DOMESTIC VIOLENCE SURVIVORS JUSTICE ACT (FOURTH DEPT). ​
THE NONDOMICILIARY DID NOT HAVE MINIMUM CONTACTS WITH NEW YORK; NEW YORK DID NOT HAVE PERSONAL JURISDICTION OVER THIS TRUST LITIGATION (FOURTH DEPT).
STEP ONE OF DEFENDANT’S BATSON CHALLENGE PROPERLY REJECTED AS VAGUE AND CONCLUSORY; THERE WAS NO CONCEPCION BARRIER TO AFFIRMING THE TRIAL COURT’S STEP-ONE RULING; THE REQUEST FOR THE CROSS-RACIAL IDENTIFICATION JURY INSTRUCTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).
ANONYMOUS 911 CALL JUSTIFIED TRAFFIC STOP; DISSENT DISAGREED (FOURTH DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

ALTHOUGH THE RESIDENT SEVERED PLAINTIFF’S NERVE DURING SURGERY, THE RESIDENT... ABUTTING PROPERTY OWNER PROPERLY GRANTED A LICENSE PURSUANT TO REAL PROPERTY...