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BECAUSE PLAINTIFF’S EXPERT AFFIDAVIT IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS MEDICAL MALPRACTICE ACTION DID NOT ADDRESS SEVERAL OF THE MALPRACTICE CLAIMS RAISED IN THE PLEADINGS, THOSE CLAIMS WERE DEEMED ABANDONED (FOURTH DEPT).

The Fourth Department noted that the affidavit of plaintiff’s expert in this medical malpractice action did not address several of the allegations of defendant’s negligence. Therefore the unaddressed claims were deemed abandoned:

The affidavit of plaintiff’s expert anesthesiologist addressed defendant’s conduct only with respect to the claims arising from defendant’s alleged failure to ensure that the transport of Pasek [plaintiff] to the operating room was performed safely and his alleged failure to document the disconnection event and resulting blood loss in Pasek’s medical chart. Inasmuch as plaintiff’s expert failed to address the claims against defendant regarding the diagnosis, consulting, testing, examination, and pre- and post-operative treatment and did not identify any deviation with respect to defendant’s efforts to ventilate, monitor, or resuscitate Pasek, those claims are deemed abandoned. Supreme Court thus erred in denying defendant’s motion with respect to those claims … , and we therefore modify the order accordingly. Pasek v Catholic Health Sys., Inc., 2020 NY Slip Op 04652, Fourth Dept 8-20-20

 

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SEIZURE OF COCAINE WAS NOT SUFFICIENTLY ATTENUATED FROM ILLEGAL DETENTION, SUPPRESSION SHOULD HAVE BEEN GRANTED; RULING THAT DETENTION WAS ILLEGAL WAS NOT ADVERSE TO THE DEFENDANT AND THEREFORE COULD NOT BE RECONSIDERED ON APPEAL.
DEFENDANT OFFERED A NONNEGLIGENT EXPLANATION OF THE REAR-END COLLISION, PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FOURTH DEPT).
DEFENDANT’S GUILTY PLEA WAS COERCED BY THE JUDGE’S THREAT TO IMPOSE A HEAVIER SENTENCE IF CONVICTED AFTER TRIAL; ALTHOUGH THE ISSUE WAS NOT PRESERVED, IT WAS CONSIDERED ON APPEAL IN THE INTEREST OF JUSTICE (FOURTH DEPT).
DEFENDANTS DID NOT DEMONSTRATE WHEN THE CAUSE OF ACTION FOR LEAD-PAINT EXPOSURE ACCRUED, THEREFORE THE SUMMARY JUDGMENT MOTION SHOULD NOT HAVE BEEN GRANTED ON THE GROUND THAT THE STATUTE OF LIMITATIONS HAD EXPIRED (FOURTH DEPT).
PROSPECTIVE JUROR WHO SAID HE OR SHE WOULD HOLD THE REFUSAL TO TESTIFY AGAINST THE DEFENDANT SHOULD HAVE BEEN EXCUSED FOR CAUSE; NEW TRIAL ORDERED (FOURTH DEPT).
WHEN DEFENDANT BECAME DISRUPTIVE JUST BEFORE THE PROSPECTIVE JURORS WERE BROUGHT IN THE JUDGE HAD HIM REMOVED FROM THE COURTROOM WITHOUT FIRST WARNING HIM AS REQUIRED BY STATUTE; NEW TRIAL ORDERED (FOURTH DEPT).
DEFENSE COUNSEL STATED DEFENDANT’S PRO SE MOTION TO WITHDRAW THE PLEA WAS WITHOUT MERIT; DEFENSE COUNSEL AND THE COURT INCORRECTLY TOLD THE DEFENDANT THE ISSUES RAISED IN THE MOTION TO WITHDRAW HAD BEEN DECIDED IN A PRIOR APPEAL: DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE (FOURTH DEPT).
ALTHOUGH DOMINICA, THE EXECUTRIX OF JOSEPHINE’S ESTATE, WAS NEVER SUBSTITUTED FOR JOSEPHINE AFTER JOSEPHINE’S DEATH, DOMINICA APPEARED AND ACTIVELY LITIGATED A MOTION TO VACATE; THE FAILURE TO EFFECT SUBSTITUTION IN THAT CIRCUMSTANCE IS A MERE IRREGULARITY; TWO-JUSTICE DISSENT (FOURTH DEPT).

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