You are here: / / THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED...
, , ,

THE MEDICAL RECORDS SUBMITTED FOR THE FIRST TIME IN REPLY CAN BE CONSIDERED BECAUSE RESPONDENTS ADDRESSED THE RELEVANT ISSUES AT ORAL ARGUMENT; THE MEDICAL RECORDS DEMONSTRATED RESPONDENTS HAD TIMELY NOTICE OF THE NATURE OF THE CLAIM; ALTHOUGH THE EXCUSE FOR DELAY WAS NOT ADEQUATE, THE DEFECT DID NOT REQUIRE DENIAL OF THE APPLICATION FOR LEAVE TO FILE A LATE NOTICE OF CLAIM; THE APPLICATION SHOULD NOT HAVE BEEN DENIED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, over a two-justice dissent, determined claimant’s application for leave to file a late notice of claim in this medical malpractice action should have been granted. The court noted that the medical records submitted for the first time in a reply were properly considered because the respondents addressed the relevant issues at oral argument. Both the majority and the dissent noted that the excuse for failure to timely file the notice of claim was inadequate but that defect did not require denial of the application. The majority found claimant demonstrated respondents were not prejudiced by the delay. The dissent disagreed with the majority’s finding that the medical records demonstrated respondents had timely notice of the nature of the claim:

… [W]e reject the contention of respondents and the dissent that it is inappropriate under the circumstances of this case to consider the medical records submitted by claimant for the first time in his reply papers. In general, ” [t]he function of reply papers is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of, or new grounds [or evidence] for the motion [or application]’ ” … . “This rule, however, is not inflexible, and a court, in the exercise of its discretion, may consider a claim or evidence offered for the first time in reply where the offering party’s adversaries responded to the newly presented claim or evidence” … . …

… “[T]he medical records . . . evince that [respondents’] medical staff, by its acts or omissions, inflicted an[ ] injury on [claimant]’ ” … . The medical records indicate that, following the surgical skin graft procedure, claimant developed swelling beneath the dressings that became constrictive of blood flow to the leg and ultimately caused necrosis, and that respondents’ medical staff, for various reasons, had failed to recognize the ischemic nature of the leg and claimant’s development of compartment syndrome, thereby eventually necessitating partial amputation of the leg … . We thus conclude that respondents timely acquired actual knowledge of the essential facts constituting the claim … . Matter of Dusch v Erie County Med. Ctr., 2020 NY Slip Op 03351, Fourth Dept 7-12-20

 

You might also like
Suppression Motion Should Have Been Granted—Defendant Arrested Before Police Had Probable Cause
Storm in Progress Doctrine Warranted Summary Judgment to Defendant in Slip and Fall Case
DEC CONTRACTORS HAD THE RIGHT TO ENTER PROPERTY TO TEST FOR GASOLINE CONTAMINATION WITHOUT SIGNING THE PROPERTY OWNER’S ACCESS AGREEMENT, BECAUSE ONLY A CHANGE IN FORM WAS REQUIRED, THE DEC’S ACTION WAS CONVERTED TO A DECLARATORY JUDGMENT ACTION 4TH DEPT.
Failure to Strictly Comply with the Procedure Mandated by the State Environmental Quality Review Act (SEQRA) Required Annulment of the Town’s Negative Declaration Re: the Construction of a Casino and Resort
A NEGATIVE INFERENCE SHOULD NOT HAVE BEEN DRAWN BASED UPON MOTHER’S FAILURE TO TESTIFY, SHE HAD NO FIRST-HAND KNOWLEDGE OF THE FACTS UNDERLYING FATHER’S PETITION TO MODIFY VISITATION, FATHER DID NOT DEMONSTRATE A CHANGE IN CIRCUMSTANCES AND DID NOT DEMONSTRATE MODIFICATION WOULD BE IN THE BEST INTERESTS OF THE CHILDREN, JUDGE DID NOT MAKE THE REQUIRED FACTUAL FINDINGS, FATHER’S PETITION SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
DEFENDANT GENERAL CONTRACTOR DID NOT EXERCISE SUPERVISORY CONTROL OVER THE PLAINTIFF OR PLAINTIFF’S CO-WORKER WHO INJURED PLAINTIFF, THE FACT THAT DEFENDANT GENERAL CONTRACTOR SUPPLIED THE EQUIPMENT WHICH INJURED PLAINTIFF DID NOT GIVE RISE TO LIABILITY ON THE GENERAL CONTRACTOR’S PART (FOURTH DEPT).
UNRESOLVED QUESTIONS OF FACT CONCERNING WHETHER THE CONSTRUCTION OF A WHOLE FOODS STORE IN THE VICINITY OF A RECREATIONAL TRAIL AND A PUBLIC USE EASEMENT VIOLATES THE PUBLIC TRUST DOCTRINE (FOURTH DEPT). ​
PRO SE PLAINTIFF’S CAUSE OF ACTION ALLEGING THE DEFENDANT ATTORNEY’S FEE WAS UNCONSCIONABLE SHOULD NOT HAVE BEEN DISMISSED, MOTION TO DISQUALIFY DEFENDANT’S ATTORNEY BECAUSE PLAINTIFF HAD INITIALLY CONSULTED WITH AN ATTORNEY AT THE DEFENDANT’S ATTORNEY’S FIRM PROPERLY DENIED (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 © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

COCAINE IS NOT DANGEROUS CONTRABAND WITHIN THE MEANING OF PROMOTING PRISON CONTRABAND... ALTHOUGH THE ORDER ADDRESSING A MOTION TO SET ASIDE THE VERDICT WAS ISSUED AFTER...