You are here: / / FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT;...
, , ,

FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT)

The Second Department noted that the defendant’s (NYS’s) failure to plead a jurisdictional defect as a defense (defendant had not timely filed and served notice of claim) waived the defect. The claimant did not present expert evidence to support the medical malpractice claim and therefore did not demonstrate that any alleged deviation from the accepted standard of care was the proximate case of his injury. The claimant alleged a negligent failure to diagnose a urinary tract infection (UTI):

“To establish a prima facie case of medical malpractice, a plaintiff must set forth (1) the standard of care in the locality where the treatment occurred, (2) that the defendant breached that standard of care, and (3) that the breach was the proximate cause of his or her injuries”… . Further, where, as here, the subject matter (UTIs) and treatment thereof are “not within the ordinary experience and knowledge of laypersons”… , the claimant must establish a prima facie case of medical malpractice through expert medical opinion … . Whitfield v State of New York, 2018 NY Slip Op 04773, Second Dept 6-27-18

COURT OF CLAIMS (FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NOTICE OF CLAIM (COURT OF CLAIMS, FAILURE TO PLEAD A JURISDICTIONAL DEFECT AS A DEFENSE WAIVED THE DEFECT; WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/NEGLIGENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/MEDICAL MALPRACTICE (EXPERT OPINION, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EVIDENCE (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))/EXPERT OPINION (MEDICAL MALPRACTICE, WITHOUT EXPERT OPINION EVIDENCE, THE MEDICAL MALPRACTICE CAUSE OF ACTION WAS NOT PROVED (SECOND DEPT))

You might also like
THE FACT THAT THE DEFENDANT IN THIS FORECLOSURE ACTION FILED FOR BANKRUPTCY DID NOT RELIEVE THE PLAINTIFF OF THE OBLIGATION TO COMPLY WITH THE NOTICE REQUIREMENTS OF REAL PROPERTY ACTIONS AND PROCEEDINGS LAW (RPAPL) 1304; PLAINTIFF’S SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
EVIDENCE OF PHYSICAL INJURY LEGALLY INSUFFICIENT, ROBBERY AND BURGLARY FIRST CONVICTIONS REDUCED (SECOND DEPT). ​
PLAINTIFF RELIED ON BUSINESS RECORDS WHICH WERE NOT PRODUCED TO DEMONSTRATE STANDING TO BRING THE FORECLOSURE ACTION; PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
DUE TO A CONTRACTOR’S ERROR, PETITIONER’S SWIMMING POOL WAS INSTALLED SIX FEET FROM THE PROPERTY LINE, VIOLATING THE 14-FOOT SETBACK REQUIREMENT; THE ZONING BOARD OF APPEALS PROPERLY DENIED THE PETITIONER’S APPLICATION FOR A VARIANCE; SUPREME COURT REVERSED (SECOND DEPT).
PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD HAVE BEEN GRANTED; THE ISSUE OF PLAINTIFF’S COMPARATIVE NEGLIGENCE CAN BE ADDRESSED AT THE SUMMARY JUDGMENT STAGE IF RAISED AS AN AFFIRMATIVE DEFENSE (SECOND DEPT).
CRITERIA FOR ADVERSE POSSESSION AND OUSTER AGAINST A COTENANT NOT MET (SECOND DEPT).
SERVICE ON AN UNAUTHORIZED FOREIGN CORPORATION DID NOT COMPLY WITH BUSINESS CORPORATION LAW 307, A JURISDICTIONAL DEFECT (SECOND DEPT). ​
“Whistleblower Statute” Cause of Action Should Have Survived the Motion to Dismiss—No Need to Cite Particular Statute, Rule or Regulation Alleged to Have Been Violated by the Employer in the Complaint

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

SUMMARY JUDGMENT SHOULD NOT HAVE BEEN AWARDED TO PLAINTIFF IN THIS SIDEWALK... PLAINTIFFS’ CONCLUSORY ALLEGATION OF FRAUD DID NOT DEFEAT THE AGREEMENT TO...