You are here: / / COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF MEDICAL MALPRACTICE RAISED...
, , ,

COURT SHOULD NOT HAVE CONSIDERED A NEW THEORY OF MEDICAL MALPRACTICE RAISED FOR THE FIRST TIME IN RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined the court should not have considered a new theory of medical malpractice raised for the first time in response to defendant’s motion for summary judgment:

… [T]he complaint and bill of particulars were only sufficient to put defendant on notice of an allegation that, in January 2013, he failed to properly compare the 2013 EC [echocardiagram] with the 2011 EC contained in decedent’s medical record, and determine that a dilation in decedent’s aorta had increased. Plaintiffs’ papers were insufficient to put defendant on notice of plaintiffs’ new theory of liability – raised for the first time in her expert’s opinion – that he deviated from the standard of care in August 2011, when interpreting the 2011 EC … . Here, where negligence is specifically alleged to have occurred only between December 2012 and January 2013, we conclude that the vague, ambiguous, nonspecific and open-ended assertion “prior or subsequent thereto” contained in plaintiffs’ bill of particulars failed to put defendant on notice of a claim that he acted negligently in August 2011. Carroll v New York City Health & Hosps. Corp., 2019 NY Slip Op 08524, First Dept 11-26-19

 

You might also like
HOUSING AUTHORITY VIOLATED ITS OWN RULES AND EFFECTIVELY PREVENTED PETITIONER FROM MEETING THE PREREQUISITES FOR A HEARING ON HER REMAINING FAMILY MEMBER GRIEVANCE.
PLAINTIFF DID NOT DEMONSTRATE FRAUD CAUSE OF ACTION WOULD SUCCEED ON ITS MERITS, WARRANT OF ATTACHMENT SHOULD NOT HAVE BEEN GRANTED 1ST DEPT.
COMPLEX ISSUES ARISE IN RETROACTIVELY DETERMINING THE APPROPRIATE RENTAL AMOUNT FOR A RENT STABILIZED APARTMENT OCCUPIED BY THE SAME TENANTS SINCE 2000.
JUDGE SHOULD NOT HAVE, SUA SPONTE, DISMISSED THE COMPLAINT AND VACATED THE DEFAULT JUDGMENT, ALTHOUGH A SUA SPONTE ORDER IS NOT APPEALABLE AS OF RIGHT, THE NOTICE OF APPEAL WAS DEEMED A MOTION FOR LEAVE TO APPEAL (FIRST DEPT). ​
GENERAL BUSINESS LAW 349 (DECEPTIVE BUSINESS PRACTICES) CAUSE OF ACTION PROPERLY SURVIVED THE MOTION TO DISMISS AND THE GENERAL BUSINESS LAW 340 (RESTRAINT OF TRADE) CAUSE OF ACTION SHOULD HAVE SURVIVED IN THIS FRAUD ACTION INVOLVING DIAMOND APPRAISALS (FIRST DEPT).
PURSUANT TO THE INDEPENDENT SOURCE RULE, THE ILLEGAL SEARCH OF DEFENDANT’S BELONGINGS AT THE HOSPITAL DID NOT TAINT THE SUBSEQUENT INVESTIGATION AND SEARCH NEAR DEFENDANT’S RESIDENCE (FIRST DEPT).
SECURITY DEPOSIT CANNOT BE USED BY THE LANDLORD AS AN OFFSET AGAINST UNPAID RENT, BUT CAN BE USED BY THE TENANT TO REDUCE AMOUNT OWED TO THE LANDLORD.
DESPITE THE HUSBAND’S EXTRAORDINARY WEALTH, THE WIFE’S OVERREACHING CAUSE OF ACTION SEEKING TO SET ASIDE THE PRENUPTIAL AGREEMENT SHOULD NOT HAVE SURVIVED SUMMARY JUDGMENT.

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

CITY’S DETERMINATION IT WOULD NOT DEFEND A POLICE OFFICER IN A SUIT ALLEGING... NO NEED TO SHOW LADDER WAS DEFECTIVE; ENOUGH TO SHOW PLAINTIFF WAS NOT PROVIDED...