You are here: / / CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED...
, , ,

CONFLICTING EXPERT OPINIONS IN THIS MEDICAL MALPRACTICE ACTION REQUIRED DENIAL OF DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT; THE FACT THAT THE ISSUE WHETHER ASPIRIN SHOULD HAVE BEEN ADMINISTERED AS TREATMENT FOR STROKE WAS RAISED IN A DEPOSITION (BUT NOT IN THE COMPLAINT OR BILL OF PARTICULARS) ALLOWED PLAINTIFF TO RAISE THE ISSUE IN OPPOSITION TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendants’ motions for summary judgment in this medical malpractice action should not have been granted. The was conflicting expert-opinion evidence about whether plaintiff should have been administered aspirin as treatment for a stroke. Although the aspirin-issue was first raised in opposition to defendants’ motions, the issue had been raised in a deposition and was therefore properly raised in the opposition papers:

… [T]he plaintiffs raised triable issues of fact as to whether Nandakumar departed from the accepted standard of care in his neurological evaluation and treatment of the injured plaintiff’s condition by failing to timely order and administer aspirin to the injured plaintiff, and whether such alleged departures proximately caused her alleged injuries … . Although the plaintiffs’ theory regarding the administration of aspirin was not specifically alleged in the complaint or bill of particulars, this theory was referred to by the plaintiffs’ counsel when deposing a … resident, and thus, was appropriately raised in opposition to [defendant’s] motion … . Walker v Jamaica Hosp. Med. Ctr., 2022 NY Slip Op 04996, Second Dept 8-17-22

Practice Point: Summary judgment is not appropriate in a medical malpractice action where there are conflicting expert opinions. Here, whether aspirin should have bean administrated to treat stroke was raised in a deposition, but not in the complaint or bill of particulars. Because it was raised in a deposition, it was properly raised in opposition to the defendants’ summary judgment motions.

 

You might also like
(HARMLESS) ERROR TO ALLOW THE LEAD DETECTIVE TO EXPLAIN THE ROLES PLAYED BY PERSONS RECORDED BY THE WIRETAPS, AND (HARMLESS) ERROR TO ADMIT THE WIRETAP ORDERS INTO EVIDENCE (SECOND DEPT).
HERE PLAINTIFF SUBMITTED A SUPPLEMENTAL BILL OF PARTICULARS, NOT AN AMENDED BILL OF PARTICULARS, MORE THAN 30 DAYS BEFORE TRIAL; DEFENDANTS SHOULD HAVE ACCEPTED IT; LEAVE OF COURT WAS NOT REQUIRED (SECOND DEPT).
THE BANK’S AFFIDAVIT IN THIS FORECLOSURE ACTION DID NOT LAY A SUFFICIENT FOUNDATION FOR THE ADMISSIBILITY OF BUSINESS RECORDS, INCLUDING PROOF OF COMPLIANCE WITH THE NOTICE REQUIREMENTS OF RPAPL 1304 (SECOND DEPT).
OUT-OF-POSSESSION LANDLORD NOT LIABLE FOR FALL ON A WET FLOOR IN THE LEASED PREMISES.
Criteria Re: Counties’ and Foster Care Agencies’ Liability for the Acts of Foster Parents Explained
THE PURCHASERS BREACHED THE CONTRACT OF SALE BY INFORMING THE SELLER THEY WOULD NOT ATTEND THE “TIME OF THE ESSENCE” CLOSING; THEREFORE THE PURCHASERS ARE ENTITLED TO RETURN OF THEIR DEPOSIT (SECOND DEPT).
THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).
THE BANK FAILED TO SUBMIT THE BUSINESS RECORDS RELIED ON IN ITS AFFIDAVIT IN THIS FORECLOSURE ACTION RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY; SUPREME COURT’S DETERMINATION THE BANK HAD COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE WAS THE LAW OF THE CASE PRECLUDING RECONSIDERATION OF THE ISSUE PURSUANT TO DEFENDANTS’ CROSS MOTION (SECOND 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

THE ACTION, WHICH STEMMED FROM PLAINTIFF’S BEING DROPPED IN THE DELIVERY... THE MOTION TO DISMISS ALLEGATIONS OF MEDICAL MALPRACTICE PRIOR TO APRIL 2013...