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RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT).

The Fourth Department, reversing (modifying) Supreme Court, determined the defendant resident physicians’ motion for summary judgment in this medical malpractice action should have been granted. Plaintiff’s bowel was perforated during an emergency caesrean section. The residents did not exercise any independent judgment during the surgery and were not required to intervene in the treatment by the attending physician (Dr. Balaya):

Dr. Bayala’s affidavit also addressed the care provided by the three resident physicians. Dr. Balaya averred that the resident physicians were all under his supervision and direction and, thus, they never exercised independent judgment or made an independent decision with respect to plaintiff’s care or treatment … . In addition, Dr. Balaya averred that none of the resident physicians could be held liable for failure to intervene in plaintiff’s care and treatment on the ground that his alleged deviations from normal medical practice were so great that such intervention was warranted … . …

Plaintiffs’ submissions in opposition to the motion failed to raise an issue of fact whether any of the resident physicians exercised independent medical judgment in plaintiff’s care or treatment, or neglected to intervene in plaintiff’s care or treatment where the attending physician’s directions greatly deviated from normal medical practice … . Groff v Kaleida Health, 2018 NY Slip Op 03249, Fourth Dept 5-4-18

​NEGLIGENCE (RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/MEDICAL MALPRACTICE  (RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))/RESIDENT PHYSICIANS (MEDICAL MALPRACTICE, RESIDENT PHYSICIANS DID NOT EXERCISE INDEPENDENT JUDGMENT AND WERE NOT REQUIRED TO INTERVENE IN THE TREATMENT BY THE ATTENDING PHYSICIAN, THE RESIDENTS’ MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION SHOULD HAVE BEEN GRANTED (FOURTH DEPT))

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THERE WAS A QUESTION OF FACT WHETHER THE LEVEL OF CONTROL EXERCISED BY THE DEFENDANT OVER THE CONSTRUCTION WAS SUCH THAT HE WAS NOT ENTITLED TO THE HOMEOWNER’S EXEMPTION IN THIS LABOR LAW 240(1) AND 241(6 ACTION; COMPLAINT REINSTATED (FOURTH DEPT).
Leave To Amend Complaint Should Have Been Granted
HERE THE JUDGE DID NOT HAVE THE AUTHORITY TO SUMMARILY MAKE A SEVERE ABUSE FINDING AND TERMINATE RESPONDENTS’ PARENTAL RIGHTS BASED UPON A PRIOR ABUSE HEARING; SEVERE ABUSE WAS NOT ALLEGED IN THE PRIOR HEARING; A SEVERE ABUSE FINDING MUST BE BASED ON A “CLEAR AND CONVINCING” STANDARD, NOT THE “PREPONDERANCE OF EVIDENCE” STANDARD APPLIED IN THE PRIOR HEARING; IN ADDITION, THE JUDGE SHOULD NOT HAVE ISSUED AN ORDER OF DISPOSITION WITHOUT HOLDING A DISPOSITIONAL HEARING; MATTER REMITTED (FOURTH DEPT).
DEFENDANT WAS CONVICTED OF GRAND LARCENY BASED UPON OVERCHARGING HER EMPLOYER; THE RESTITUTION SHOULD NOT HAVE INCLUDED THE LABOR COSTS INCURRED BY THE EMPLOYER FOR INVESTIGATING THE CRIME OR THE TRAVEL COSTS FOR WITNESSES TO TESTIFY AT TRIAL; THE FOURTH DEPARTMENT REFUSED TO FOLLOW A THIRD DEPARTMENT DECISION RE: TRAVEL EXPENSES AND LOST WORK ASSOCIATED WITH TESTIFYING AT TRIAL (FOURTH DEPT).
AFTER A TRAFFIC STOP AND A FOOT CHASE DEFENDANT WAS TAKEN INTO CUSTODY; NOTHING THE DEPUTY HAD SEEN AT THAT POINT PROVIDED PROBABLE CAUSE TO SEARCH THE DEFENDANT’S CAR; AFTER OPENING THE CAR DOOR AND SMELLING MARIJUANA THE DEPUTY CONDUCTED A WARRANTLESS SEARCH; THE DRUGS AND WEAPON SHOULD HAVE BEEN SUPPRESSED (FOURTH DEPT)
JUDGE SHOULD HAVE MADE AN INQUIRY INTO ALLEGATIONS OF JUROR BIAS BASED UPON AN OBSERVATION DURING A RECESS, NEW TRIAL ORDERED.
DEFENDANT HAD STANDING TO CONTEST THE SEARCH, MATTER REMITTED (FOURTH DEPT).
THE PROPERTY OWNERS DID NOT DEMONSTRATE THEY COULD NOT REALIZE A REASONABLE RETURN ON THE PROPERTY ABSENT THE USE VARIANCE ALLOWING CONSTRUCTION OF A “DOLLAR STORE;” THE USE VARIANCE SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).

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