It was also Dr. Girardi's opinion that, given plaintiff's extensive spinal disease and the prospect of low improvement, the risk of surgery including quadriplegia or even death, was clearly not warranted. Michael Cross is a provider established in Indianapolis, Indiana and his medical specialization is Orthopaedic Surgery with more than 17 years of experience. . To the contrary, the compelling interest is judicial economy, which militates in favor of summary disposition of even an untimely motion made in response to one timely filed (see Burns, 307 AD2d at 864), [*16]especially if that "summary judgment motion may resolve the entire case" (Brill, 2 NY3d at 651). Dr. Michael Ast, MD - New York, NY | Orthopaedic Surgery - Doximity Dr. Michael B. Cross's office location Michael B. Kershaw v Hospital for Special Surgery The courts will no longer have to address the kinds of questions we address here. All rights reserved. While courts have deemed this mislabeling a "technical" defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 AD3d 403, 404 [2d Dept 2004]), in this case the nature of nonmovant plaintiff's opposition is that there was prejudice because to the extent the court deems HSS's motion a cross motion, the Brill rule is ignored. See times, locations, directions & contact information for Dr. Michael Cross in Indianapolis, IN. The same expertise that has earned HSS the #1 ranking for orthopedics in the world by Newsweek and the #1 ranking in the U.S. 13 years in a row according to U.S. News & World Report* is available locally through a unique collaboration with the caring experts at Stamford Health. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. The majority suggests that an independent basis for finding HSS to have been negligent might be found in the expert's opinion that "surgery for [plaintiff] was indicated as early as June 2003." Significantly, Brill deals with the straightforward situation in which an initial summary judgment motion is filed well after a matter has been certified as ready for trial "in violation of legislative mandate" (id. Quite likely, the City's legal argument would have been dispositive. He was found to have "significant" cervical stenosis and compression of his spinal cord, as well as cord signal change especially at C3-4 and C4-5. Indeed, in our view, the dissent wrongly interprets the statute by claiming that the "good cause shown" prong is not always a part of the CPLR 3212(a) analysis. at 236, citing Andrea, Miceli, Brill, and Kihl). Feinman, J. Dr. Michael A. The motion court properly dismissed the case as against HJD. Under the circumstances presented by this matter, this view constitutes an unnecessarily rigid application of [*14]CPLR 3212(a), contravening the sound policy considerations underlying the decision and the intent expressed by the Legislature in amending the statute. Bonanno v. Mayman, 2019 N.Y. Slip Op. 33343 | Casetext Search + Citator Overall rating 4.92 Wait time 3.69 Bedside manner 4.85 Your trust is our top concern, so providers can't pay to alter or remove reviews. "The question remains whether HSS should remain a viable defendant in this case. The clinic notes indicated that plaintiff "need[ed] a decompression at C3-4, C4-5 and C6-7," that "probably" this would be done in an anterior approach, and that "surgery will be booked in the near future." 211 likes. Michael B. Cross - OSET | Orthopaedic Summit Under the circumstances presented, the motion court was within its discretion to review HSS's motion on the merits (see Alexander, 95 AD3d at 1247; Grande, 39 AD3d at 591-529). Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. Mystery solved: Extell is building a 30-story, 400,000-square-foot medical tower. Dr. Michael B. Cross, MD | Michael B. Cross, MD, New York, NY MichaelPaulAstMDFAAOS Orthopaedic Surgery New York, NY Hip & Knee Reconstructive Surgery Assistant Professor, Orthopaedic Surgery Chief Medical Innovation Officer Vice Chair, HSS Innovation Institute Hospital for Special Surgery Join to view full profile Office 541 East 71st Street 6th Floor New York, NY 10021 Phone+1 201-599-8056 The motion court granted defendant HJD's motion for summary judgment and denied HSS's motion for the same relief. The court then went on to comment in dicta that if its merits were examined, summary dismissal should be denied as there are substantial questions of Mobile Navigation Menu. ), entered July 16, 2012, which, insofar as appealed from as limited by the briefs, granted the summary judgment motion of defendants Hospital for Special Surgery, Peter Frelinghuysen, and Federico Pablo Girardi (collectively HSS) only to the extent of Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. Hospital for Special Surgery Florida | Orthopaedic Services | Fort [*17]. Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". Save my name, email, and website in this browser for the next time I comment. The undesirable practice sought to be prevented by revision of CPLR 3212(a) is the waste of resources expended in preparation for trial as the result of a belated summary judgment motion staying the proceedings. I am returning on Oct 9, 2020, for my left knee and am actually looking forward to it. James, in turn, relied on Rosa v R.H. Macy Co. (272 AD2d 87 [1st Dept 2000]), where Macy moved for summary judgment and two other defendants untimely cross-moved against it for indemnity; the motion and another timely cross motion were still pending, and we held that the untimely cross motions should have been considered. The dissent's approach of judging a motion's merits without consideration of why it was untimely, can only lead to uncertainty and additional litigation as motions clearly barred by Brill become arguably permissible because one of the litigants perceives the motion to have merit and perceives no prejudice to the other side. Plaintiff had "significant C-5 weakness of the right upper extremity." Contrary to the majority's assertion, I do not advocate limiting application "of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar." dr michael cross leaving hss He met with another HSS doctor on October 22, 2004, who wrote that the plan was to have plaintiff return in November to see Frelinghuysen "for booking of his anterior disc fusion surgery." Dr. Cross specializes in adult reconstructive surgery of the hip and knee,. ], 5 NY3d 514 [2005], citing Brill [dismissal after ongoing failure to comply with discovery orders]; Miceli v State Farm Mut. Dr. Michael B. Dr. Murphy conclusively states that plaintiff's condition progressively deteriorated during the period of treatment at defendant hospitals, yet he points to no objective evidence supporting this statement, despite the fact that the record contains numerous diagnostic tests over that period of time. By making a cross motion, the party saves an extra day in court, and quite possibly the time and trouble of amassing fresh proof, if it happens that all or part of the evidentiary foundation on which the cross motion is based has already been produced for consideration (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1, 2215:2). All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P. 35 Mayflower Avenue Unit B Stamford, CT 06906 Phone +1 (212) 987-OSET (6738) CONTACT US . Sinai, and the only change in his condition was numbness in his right arm and hand, likely due to the development of carpal tunnel syndrome. Logically, if plaintiff did not sustain injury as a result of HJD's February 2005 decision, it follows that he did not sustain injury as a result of the similar December 2004 determination, approximately 2 months earlier, by HSS physicians to forego surgery, especially in light of plaintiff's long history of [*13]cervical disc disease. Dr. Michael Cross, MD, Orthopedic Surgery | Indianapolis, IN | WebMD The doctor also noted that plaintiff did not objectively regain any strength or function after having the surgery at Mt. "The failure to comply with deadlines not only impairs the efficient functioning of the courts and the adjudication of claims, but it places jurists unnecessarily in the position of having to order enforcement remedies to respond to the delinquent conduct of members of the bar, often to the detriment of the litigants they represent. Plaintiff continued to complain of cervical and lumbar discomfort and worsening of the pre-existing weakness in his right upper extremity. However, the City gave no explanation for why its motion was made close to a year after the trial calendar papers were filed. However, the solution, the Court of Appeals explains, is not for the courts to overlook or bend CPLR 3212(a) to fit the particular circumstances, but for "practitioners [to] move for summary judgment within the prescribed time period or offer a legitimate reason for the delay" (id.). Dr. Cross completed his residency at HSS, where he was awarded the Russell Warren Basic Science Research Award and the Jean McDaniel Award, which is given to the Chief Resident who best demonstrates leadership, professionalism and ethics in the care of patients. Sinai. The practice sought to be deterred in Brill is delay occasioned by the submission of a summary judgment motion on the eve of trial, thereby staying proceedings to the prejudice of litigants who have applied their resources in preparation for trial of the issues (Brill, 2 NY3d at 651). At a follow-up visit in June 2003, he was told that he might not fully recover his right arm motor loss; he was "somewhat disappointed" but acknowledged that his 1994 surgery had a similar result as to his left side. HSS Orthopedics Joins Forces With Stamford Health. Co., 3 NY3d 725 [2004], citing Brill [denying untimely filed summary judgment motion because although the plaintiff argued she had meritorious case, no reasonable excuse was provided as to the motion's late filing]; see also Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471 [1st Dept 2013] [upholding order striking answer where the defendant offered no reasonable excuse for its failure to comply with discovery order and provide a meritorious defense]). However, bending the rule results in the practical elimination of the "good cause shown" aspect of CPLR 3212(a), and the clear intent of Brill. Tel: (212) 606-1000. Specialties. Rote application of the summary judgment provision, which permits the court to "set a date after which no such motion may be made," leads to the result advocated by the majority strict rejection of the motion as untimely without taking into consideration the circumstances of the case, relegating the moving party to litigating its position at trial. hilton houston address. Lapin is one in a line of cases holding that an untimely cross motion may be considered on its merits when it and the timely motion address essentially the same issues. Sinai for much of that time. Although raised in the context of a purported "cross motion," resolution of this appeal requires us to once again revisit the issue of untimely summary judgment motions. This surgeon was submitted to G.O.S. Given the budgetary constraints presently confronted by the court system, this is hardly a fitting time to require trial of a matter devoid of apparent merit and otherwise amenable to disposition on motion, and the "genuine need" to be accommodated is that of the court to proceed expeditiously (id.). Plaintiff was referred for pain management and to HJD's neurology and hand clinics, with the notation that "no further surgery for the cervical spine [was] indicated.". Hospital for Special Surgery/Cornell Medical Center Residency, Orthopaedic Surgery, 2007 - 2012. Order, Supreme Court, New York County (Alice Schlesinger, J. Some decisions also reason that because CPLR 3212(b) gives the court the power to search the record and grant summary judgment to any party without the necessity of a cross motion, the court may address an untimely cross motion at least as to the causes of action or issues that are the subject of the timely motion (see Filannino, 34 AD3d at 281, citing Dunham v Hilco Constr. The NPI number of this provider is 1235397043 and was assigned on May 2008. Brill emphasizes that summary judgment is advantageous to the parties by "avoiding needless litigation cost and delay" and constitutes "a great benefit both to the parties and to the overburdened New York State trial courts" since it "may resolve the entire case" (Brill, 2 NY3d at 651). After review of the MRI, he determined that no further surgery for the cervical spine was indicated and that there should be no lumbar spine surgery "at this time." Opinion by Feinman, J. On January 10, 2012, [*6]well after the deadline for dispositive motions had passed, HSS "cross-moved" for summary judgment without providing any explanation whatsoever for its delay. Again, in hindsight, he formulates a conclusory opinion that the more aggressive approach to treatment was the proper one; the competing medical factors to be considered in deciding whether to perform the surgery are simply not addressed. Footnote 1: To reiterate, it was the timely motion by HJD that delayed trial, not the motion submitted by HSS while HJD's motion was pending, a situation addressed neither by the statute nor Brill. As to HSS, the court clearly held that because the cross motion was filed impermissibly [*5]late with no reason offered for the lateness, it should be denied.
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