You are here: / / PLAINTIFFS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS SPECIFIC ASSERTIONS...
, ,

PLAINTIFFS’ EXPERT’S AFFIDAVIT DID NOT ADDRESS SPECIFIC ASSERTIONS BY DEFENDANT’S EXPERT RE: PROXIMATE CAUSE IN THIS MEDICAL MALPRACTICE ACTION; THEREFORE DEFENDANT WAS ENTITLED TO SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the plaintiffs’ expert’s affidavit in opposition to defendant’s motion for summary judgment in this medical malpractice action did not address all the proximate-cause issues railed by defendant’s expert, specifically the plaintiff’s failure to return for a follow-up visited after being treated in the emergency room at Elmhurst Hospital (the defendant). Therefore, defendant’s motion for summary judgment should have been granted:

At Elmhurst, the injured plaintiff’s forearm was X-rayed, and his wound was cleaned, sutured, and dressed. Later that same day, the injured plaintiff was discharged and instructed to return in two days for a follow-up appointment. The injured plaintiff did not return for the follow-up appointment but instead followed up with several physicians who were not associated with the defendant. The injured plaintiff allegedly required surgery later to repair several tendons in his forearm. The plaintiffs alleged that the defendant negligently failed to properly diagnose and treat the injured plaintiff’s injuries during the initial emergency department visit at Elmhurst. * * *

… [T]he defendant established its prima facie entitlement to judgment as a matter of law by submitting … an affirmation of an expert physician, who opined that the physicians and employees of the defendant did not depart from the applicable standard of care and that any alleged departures were not a proximate cause of the injured plaintiff’s injuries … . In opposition, the plaintiffs failed to raise a triable issue of fact regarding proximate cause. The opinions of the plaintiffs’ expert regarding proximate cause failed to address specific assertions made by the defendant’s expert regarding, among other things, the implications of the injured plaintiff’s failure to return for a follow-up appointment as instructed … . Torres v New York City Health & Hosps. Corp., 2025 NY Slip Op 02806, Second Dept 5-7-25

Practice Point: In this med mal action, the defense expert’s affirmation submitted with defendant’s motion for summary judgment raised proximate-cause issues that were not addressed by plaintiffs’ expert. Therefore, defendant’s summary judgment motion should have been granted.

 

You might also like
Whether Lost Evidence Was Relevant to Plaintiff’s Case Presented a Jury Question—Only If the Jury Determines the Evidence Was Relevant Can the Jury Consider the Adverse Inference Charge for Spoliation of Evidence
PLAINTIFF WAS BEATEN UP BY OTHER STUDENTS, SCHOOL DID NOT DEMONSTRATE A LACK OF NOTICE OF THE ATTACKERS’ VIOLENT PROPENSITIES AND THE ADEQUACY OF SECURITY MEASURES, SCHOOL’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Breach of Contract Action Against School District Untimely—Notice of Claim Required by Education Law 3813 Not Filed Within Three Months of the Accrual of the Claim
ALTHOUGH PLAINTIFF HERSELF MAY NOT HAVE BEEN ABLE TO IDENTIFY THE CAUSE OF HER SLIP AND FALL, HER DAUGHTER, WHO WITNESSED THE FALL, PROVIDED SUFFICIENT EVIDENCE TO WARRANT DENIAL OF DEFENDANT’S SUMMARY JUDGMENT MOTION (SECOND DEPT).
HEARING SHOULD HAVE BEEN HELD TO DETERMINE WHETHER INTIMATE RELATIONSHIP PROVIDED FAMILY COURT WITH JURISDICTION OVER PETITION SEEKING ORDER OF PROTECTION.
THE LANGUAGE OF THE EASEMENT CREATED AN AMBIGUITY ABOUT WHETHER THE EASEMENT WAS INTENDED TO BE USED TO ACCESS A PUBLIC ROAD; DEFENDANT’S MOTION TO DISMISS THE COMPLAINT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
APPELLATE COUNSEL’S BRIEF IN SUPPORT OF LEAVE TO WITHDRAW WAS DEFICIENT, NEW APPELLATE COUNSEL ASSIGNED (SECOND DEPT).
In the Absence of a Showing of Possible Fraud, Income Tax Returns Not Discoverable

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

DEFENDANT’S EXPERT AFFIDAVIT IN THIS MEDICAL MALPRACTICE ACTION DID NOT... THE “EVEN YEAR ELECTION LAW” (EYEL) IS CONSTITUTIONAL, SUPREME COURT...