Remote Second Opinion Plaintiff was a patient a much longer time at HSS than at HJD, surgery was positively discussed by the HSS defendants, and thus there are factual differences between the two defendants' treatments. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. This surgeon was submitted to G.O.S. 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." The value of enforcing the terms of the statute as written is that attorneys will make sure their motions are timely filed or that there is a good reason for the lateness. First of all, under the authority of Brill [2 NY3d 648 (2004)], the cross[]motion was clearly untimely without any explanation, and counsel is simply wrong when he argues that the cross[]motion raises the same issues as the motion timely made by [HJD]. This site is protected by reCAPTCHA and the Google, New York Appellate Division, First Department, New York Appellate Division, First Department Decisions. 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. Location in NY, NJ, CT and Florida. OrthoIndy Hospital is physician-owned and operated. Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. If you know this doctor and/or would like to share more about his good work please feel free to add a comment below. at 236, citing Andrea, Miceli, Brill, and Kihl). I respectfully disagree with the majority's holding and would dismiss plaintiff's claim of medical malpractice against defendants Hospital for Special Surgery and its physicians (collectively, HSS). Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. by Peter Gordon. Michael Cross is a provider established in Indianapolis, Indiana and his medical specialization is Orthopaedic Surgery with more than 17 years of experience. Palomo v 175th St. Realty Corp., 101 AD3d 579 [1st Dept 2012]; Conklin v Triborough Bridge and Tunnel Auth., 49 AD3d 320 [1st Dept 2008]; Filannino v Triborough Bridge & Tunnnel Auth., 34 AD3d 280, 281-282 [1st Dept 2006], appeal dismissed 9 NY3d 862 [2007]; Osario v BRF Constr. I obviously highly recommend Dr. Cross and his team. To prevail on a summary judgment motion, the moving party must produce evidentiary proof in admissible form sufficient to warrant the direction of summary judgment in his or her favor (GTF Mktg., Inc. v Colonial Aluminum Sales, 66 NY2d 965, 967 [1985]). 35 Mayflower Avenue Unit B Stamford, CT 06906 Phone +1 (212) 987-OSET (6738) CONTACT US . 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." New York State Society of Orthopaedic Surgeons All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P.TOM, J.P. (dissenting in part). dr michael cross leaving hss. Find a Doctor: By Name, Specialty, Location & Insurance Find a Doctor At HSS, the world's best musculoskeletal specialists work together to provide the best care for you. "The question remains whether HSS should remain a viable defendant in this case. 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. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. 523 e 72nd st attention: michael cross, m.d. Brill reiterates Kihl's statement that, " [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (2 NY3d at 652-653, quoting Kihl at 123). with the kind of [*12]degeneration of the spinal cord [plaintiff] had, risk[ed] creating symptoms in the hands or feet. This statement concedes that HSS properly conducted further studies; that the results failed to afford any further diagnostic insight that was not predictable, and neither the tests themselves nor the time expended in conducting them are rendered improper as a result of that outcome. Dr. Michael Allen Cross 5053 Wooster Rd Cincinnati, OH 45226. All Sessions by Michael B. There is no suggestion that the narrow interpretation imposed upon the term "good cause" in Brill is meant to apply in circumstances, such as here, where a timely motion is followed by a corresponding motion that is not. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party (Mango v Long Is. Thereafter, the motion court issued an order which provided that "[t]he time for the various defendants to move for summary judgment is extended through November 14, 2011." But to reject the motion on that ground, under the facts herein, ignores the adverse consequences of imposing an overly restrictive rule, specifically, consequences that are especially adverse to the courts. Corp., 91 NY2d 291, 296 [1998]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept 2000]). . In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. Our decision is not one on the merits of plaintiff's claim, and it is therefore premature to bemoan that we have opened a Pandora's box for surgeons. Both HSS and HJD established their prima facie entitlement to summary judgment, proffering evidence that plaintiff did not sustain any injury resulting from the respective institutions' independent decisions to recommend against further surgery. The notes also indicate that this doctor explained to plaintiff that the reason to do surgery would be to prevent worsening of his symptoms. 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). Ins. Electronic tests revealed that plaintiff's cervical condition was significantly the same as in 2005 which supported Dr. Hecht's post surgical findings. Altschuler, in turn, relied on a pre-Brill decision, James v Jamie Towers Hous. Find Providers by Condition. OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. Its motion papers included an affidavit of a medical expert who discussed plaintiff's medical history as seen in the records. Mon 7:00 am - 6:00 pm. According to Girardi, after viewing the films, in his opinion the severity of plaintiff's spinal disease and the low prospect of improvement did not warrant the risks of surgery. Moreover, the exception discussed in Filannino allowing the courts to consider proper but untimely cross motions, at least as to issues shared with the original motion, addresses the dissent's concern that a cross-moving party might be caused to file its motion late because it had insufficient time before the deadline occurred. The majority thereby dispenses with the salutary aspects of summary disposition acknowledged in Brill for no apparent purpose. Cross appeals from the order of the Supreme Court, Cross, MD. Post-operatively, in February and April 2006, plaintiff indicated that he felt returning strength in his right arm although not his left, and a general "slow improvement." ), 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 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. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. 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. Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. In support of its motion, HSS even relies on the same affidavit by Dr. Olsewski submitted in support of HJD's motion. 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. Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ. The Best of the Best in Orthopedic Surgery. "[FN4] There are sufficient discrepancies in the record and in the experts' opinions that raise questions of fact regarding HSS's course of treatment beginning in 2004, if not earlier. He is board certified in Orthopedic Surgery and graduated from VANDERBILT UNIV SCH. An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). According to Dr. Olsewski, the best case scenario "was to stop further progression of the cervical myelopathy"; the worst could have resulted in permanent paralysis or death, risks "well beyond the standard. new york, ny zip 10021-099 phone: (212) 774-2114 fax: (646) 797-8298 The provider's authorized official is Michael B Cross . 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. at 653). Dr. Petrizzo testified that the overwhelming majority of patients with cervical myelopathy do not regain function after decompression surgery. Thus, Brill cannot be said to reflect an intent to abandon the conspicuous advantages of summary judgment for the sake of procedural formalism. The cross movant may rely on the papers submitted with the main motion to support the relief sought. It reasons that because Brill emphasizes the advantages of summary judgment, with which we of course agree, those advantages outweigh a consistent application of the statute. 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). The majority concludes that summary disposition is precluded by the Court of Appeals' decision in Brill v City of New York (2 NY3d 648 [2004]), without reference to the judicial policy espoused in the opinion. He attended Washington University in St. Louis for his undergraduate education, where he double majored in chemistry and mathematics/statistics and played varsity football. Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. . Judgment, same court and Justice, entered August 20, 2012, affirmed, without costs. It is true that since Brill was decided, this Court has held, on many occasions, that an untimely but correctly labeled cross motion may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause (see e.g. In Brill the Court of Appeals indicated that late-filed summary judgment motions are "another example of sloppy practice threatening our judicial system" (2 NY3d at 652, emphasis added), and pointed to its earlier decision, Kihl v Pfeffer (94 NY2d 118 [1999]), which affirmed dismissal of the complaint because the plaintiff failed to respond to a court order within the court-ordered time frame. On the merits, discounting the supporting opinion of plaintiff's expert as conclusory, the majority finds that the evidence demonstrates that plaintiff suffered no injury as a result of HJD's February 2005 determination that surgical intervention was unwarranted. Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for appellants-respondents. While defendants have not raised the question of whether the complaint is actionable, the issue should nevertheless be decided preliminarily. In April 2003, plaintiff again returned because he was experiencing increased weakness in his right upper arm. 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). Hospital For Special Surgery. The result will be judicial economy, as well as lawyerly economy. A late motion filing is properly entertained when it raises nearly identical issues to one timely made (see Lapin v Atlantic Realty Apts. 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. The majority sustained the action as against HSS as a result of the hospital's submission of its summary judgment motion after the date set by the trial court pursuant to CPLR 3212(a). [*2]Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), and Shoshana T. Bookson, New York, for respondent-appellant. He further opined that had the surgery been performed in 2003, plaintiff's "final outcome would have been substantially improved and he would not have sustained such a severe degree of weakness and loss of function of his right upper extremity." Of course, it must be pointed out that the cross-movant would have good cause for its late motion in that situation, and the cross motion would be evaluated on its merits (see e.g. The best that surgery could do was stop the myelopathy, but there was risk of permanent paralysis or death, "well beyond the standard for such risks for cervical spine cases." On March 24, 2016, Dr. Machler reported the results of a weeklong skin patch test, in which plaintiff was exposed to 121 allergens against the skin of his back. 212.606.1823 212.734.3833 (fax) www.hss.edu alumni@hss.edu. "Thus, the rationale for the court's denial was articulated as being that the "cross motion" was untimely. Was seen ahead of scheduled appointment time. He graduated from Vanderbilt University School Of Medicine in 2006. Jean McDaniel Award, American Association of Hip and Knee Surgeons HJD met its burden of showing prima facie entitlement to summary judgment, proffering evidence that plaintiff was not caused to suffer any injury between February 2005 when HJD found that surgery was not indicated, and April 2005 when he first consulted with Mt. HSS admitted that its motion seeking summary judgment and dismissal of the complaint as against it was filed nearly two months after the court-imposed deadline for making dispositive motions,[FN2] but argued that it should be considered because it sought relief on the same issues raised in codefendant HJD's timely motion. Footnote 3: In Cadichon v Facelle (18 NY3d 230 [2011]), the Court reversed a "ministerial" dismissal based on the failure to timely file the note of issue because the trial court did not provide notice to the parties or issue a formal order; the decision notes that the record showed that neither set of parties acted "with expediency in moving the case forward," and that deadlines must not be disregarded (id. Dr. Anthony Petrizzo of HJD examined plaintiff on February 11, 2005, finding severe upper extremity atrophy, with deltoid strength at 1/5, and 2/5 strength to the biceps. The court noted that Dr. Girardi at HSS "explained clearly that he believed that the cord was so damaged that the surgery would not have improved anything" and Dr. Hecht, who performed the surgery, acknowledged that plaintiff did not have any objective improvement. Cross is a radiation oncologist. Time Program Topic Faculty; Orthopaedic Summit. 211 likes. 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. Nonmovants will suffer no prejudice. In addressing this problem, the Court of Appeals noted that "the Legislature struck a balance, setting an outside limit on the time for filing summary judgment motions, but allowing the courts latitude to set an alternative limit or to consider untimely motions to accommodate genuine need" (Brill, 2 NY3d at 651). Socy., 266 NY 71, 88 [1934]). FIND A DOCTOR. Although the system mainly runs in the . To the extent that good cause is even material under these circumstances, it is the sheer impossibility of preparing a dispositive motion during the remaining time established by the court for its submission. Sinai, where he was first seen in the orthopedic clinic on April 21, 2005. Footnotes Co. (294 AD2d 268, 272 [1st Dept 2002], affd 99 NY2d 639 [2003]). To the extent HSS's motion was directed at the complaint, as opposed to any cross claims by HJD, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. Particularly, the majority holds that the summary judgment motion interposed by HSS was untimely and beyond the motion court's power to entertain pursuant to Brill. hilton houston address. HSS argued to the motion court, as it does to this Court, that its motion should be considered on the merits because it merely presents the same arguments made by HJD. Cross, MD . Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. Specialties. Dr. Michael Alexiades, MD - Lake Success, NY | Orthopaedic Surgery MichaelMAlexiadesMD Orthopaedic Surgery Lake Success, NY Hip & Knee Reconstructive Surgery Associate Professor of Orthopedic Surgery, Cornell University-Weill Medical College Join to view full profile Office 2800 Marcus avenue Lake success, NY Lake Success, NY 11042 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. At his next visit on November 12, 2004, a different doctor indicated in the clinic notes that Frelinghuysen and Girardi had recommended "what sounds like a two-level anterior cervical decompression and fusion," and that plaintiff would follow up in one week "to discuss surgery" [*3]with Frelinghuysen [FN1]. Copyright 2023 OrthoIndy. Plaintiff had "significant C-5 weakness of the right upper extremity." As to HSS, the court noted that the motion was clearly untimely, without explanation. Dr. Cross is board-certified with several association memberships, including the American Academy of Orthopaedic Surgeons, the New York State Society of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, the Orthopaedic Research Society, and the Musculoskeletal Infection Society. The course adopted by plaintiff of locating a medical team possessing the requisite skills at a hospital equipped with the appropriate facilities represents a seemingly optimal outcome which, as a matter of policy, should not be compromised by the threat of litigation. Therefore, the motion must be denied as untimely. You already receive all suggested Justia Opinion Summary Newsletters. Here, the modestly late motion submitted by HSS sought relief on the same issues raised in HJD's timely motion. 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. Contact; Help; Partners; Blog; Press; Product; . Co-Chief of the Sports Medicine and Shoulder Service, and John Cavanaugh, PT, MEd, ATC, SCS, Clinical Supervisor, HSS Sports Rehabilitation and Performance Center, at the 2012 Summer Olympic. The Mt. Co., LLC, 48 AD3d 337, 337 [1st Dept 2008]; Alexander v Gordon, 95 AD3d 1245, 1246-1247 [2d Dept 2012]; Grande v Peteroy, 39 AD3d 590, 591-592 [2d Dept 2007]). Tel: (212) 606-1000. World-Renowned Experts Focused on You As leaders in the field, the doctors at HSS Florida have years of experience in caring for people with all types of orthopedic conditions, from persistent knee pain to shoulder injuries. Rather, we enforce the law as written by the legislature, and as explained in Brill. In Brill, the City of New York moved for summary judgment on the basis that it never had notice of the defect and therefore could not be liable for the plaintiff's personal injuries by law. A bitter divorce between a top New York City spine surgeon and his beauty-queen wife was quickly settled Monday after he filed court papers making tawdry accusations that she was moonlighting as. 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). When the courts consistently "refus[e] to countenance" violation of statutory time frames, there will be fewer instances of untimely, improperly labeled motions, because "movants will develop a habit of compliance" with the statutory and court-ordered time frames, and late motions will include a good cause reason for the delay (id.). Dr. Ast is affiliated with Hospital For Special Surgery and Hospital for Special Surgery. Cross is an assistant attending orthopedic surgeon at New York City-based Hospital for Special Surgery, as well as a clinical instructor of orthopedic surgery at Weill Cornell Medical College, also in New York City. Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". Appellate Division, First Department ), entered July 16, 2012, affirmed, without costs. Lapin relied on Altschuler v Gramatan Mgt., Inc. (27 AD3d 304 [1st Dept 2006]), which held it proper to consider the untimely "cross motion," in particular because it was "largely based" on the same arguments raised in the timely motion for summary judgment, and the same findings would apply for both it and the timely motion. Plaintiff subsequently underwent the subject procedure at nonparty Mt. RX Drugs & Medications Vitamins & Supplements. The courts will no longer have to address the kinds of questions we address here. Michael B Cross Mid-flexion instability (MFI) in total knee arthroplasty refers to a distinct clinical entity where the knee is stable at full extension and 90 of flexion, but unstable. Rather, it will be for a trial court and a jury to hear plaintiff's case, and should plaintiff prevail, then, assuming a timely appeal is taken and perfected, and only then, will we have occasion to consider the merits of the claim against HSS. On November 19, 2004, the clinic notes indicate that Frelinghuysen planned to review the patient films with Girardi and "we will plan for an anterior cervical decompression and fusion at a later date."
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