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. 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. 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. Both seek dismissal of the complaint on the identical ground that it was not a departure from good and accepted medical practice to forego surgery in favor of a conservative treatment plan, i.e., based on the severity of plaintiff's existing spinal disease and the low prospect of improving his condition, the decision not to subject plaintiff to the risk of quadriplegia or death was a sound medical decision. HSS did not merely rely on the papers amassed by HJD, and as the motion court correctly noted, "[d]ifferences [in the factual record] necessarily exist because [plaintiff] was a patient at HSS for an extended time before he came to [HJD]" and he was "a patient [at HJD] from only February 2005 to September 2005. You can explore additional available newsletters here. Thus, plaintiff failed to rebut HJD's prima facie entitlement to summary judgment. Only after the extent of a duty has been established as a matter of law may a jury resolve as a question of fact whether a particular defendant has breached that duty with respect to a particular plaintiff" (citing Kimmell v Schaefer, 89 NY2d 257, 264 [1996]). 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. No surgery would have been able to reverse plaintiff's neurological deficits, "which were significant by the time he presented at HJD, and had already existed for many years." Physical therapy, pain management and treatment in HJD's neurology, hand and shoulder clinics were recommended. The dissent expresses concern about an extra burden to the courts and litigants if we strictly enforce Brill "without taking into consideration the circumstances of the case." My stay at the Hotel for Special Surgery was flawless. Moreover, "because of a phenomenon called rebound myelopathy, an operation . "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. A cross motion offers several advantages to the movant. fact, barring summary resolution. Dr. Michael M. Alexiades, MD | Lake Success, NY | Orthopedist | US News Dr. Michael Brian Cross has 13 locations Orthoindy Northwest 8450 Northwest Blvd Indianapolis, IN 46278 (317) 802-2000 ACCEPTING NEW PATIENTS Michael Cross MD 535 E 70th St Fl 7 Ste 710 New York, NY 10021 (212) 774-2114 Dr. Michael Cross' Practice 523 E 72nd St Fl 7 New York, NY 10021 (212) 774-2127 We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]). As this Court recently noted in Williams v New York City Tr. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. HSS Alumni Association Newsletter: Fall 2009 Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. 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. Jean McDaniel Award, American Association of Hip and Knee Surgeons Appellate Division, First Department Oice of Alumni Afairs 535 East 70th Street, New York, NY 10021 212.606.1057 . Education VANDERBILT UNIV SCH OF MED, Medical School 2006 Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Your email address will not be published. With the advantage of hindsight, the doctor offers that "[w]hile further diagnostic studies were not inappropriate, they did not contribute any substantial information which would alter the indicated treatment." (108 AD3d 403, 404 [1st Dept 2013]) Dr. Michael Cross, MD - Lafayette, IN | Orthopaedic Surgery New York County (Alice Schlesinger, J. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. According to the clinic notes, the doctors advised plaintiff that surgery would likely not result in the return of muscle function, but that there was "a slight chance" of improvement. ", As to the delay causing any injury, the doctor stated that there was no identifiable injury caused by any alleged delay during the four month period between when plaintiff was first seen at HJD and when he first went to Mt. 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. Everyone was professional. 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." 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." Order, Supreme Court, New York County (Alice Schlesinger, J. In sum, an outdated, pre-Brill interpretation of the amended CPLR 3212(a) continued to hold sway in Lapin. Auto. 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 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. In December 1994, plaintiff had surgery at HSS to address multilevel cervical stenosis with myelopathy and radiculopathy, a condition that existed for a period of time which caused plaintiff continuous weakness of his upper extremities including left shoulder. Dr. Cross earned his bachelors degree from Washington University in St. Louis in 2002. 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. He is board certified in Orthopedic Surgery and graduated from VANDERBILT UNIV SCH. Dr. Cross completed his internship at New York-Presbyterian/Weill Cornell Medical Center in 2007 and his residency at Hospital for Special Surgery in New York in 2012 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. As the Court of Appeals has admonished, " No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association'" (Matter of Staber v Fidler, 65 NY2d 529, 535 [1985], quoting Dougherty v Equitable Life Assur. 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." Plaintiff testified that on his third visit with Frelinghuysen in December 2004, the doctor told him that they could not do the surgery, but did not give him "a reason that made any sense." 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. Your email address will not be published. In particular, the records suggest that HSS believed surgery was appropriate and helpful in as early as 2003, surgery is repeatedly mentioned in the records of 2004, and plaintiff believed that surgery had been scheduled. The doctor also noted that plaintiff did not objectively regain any strength or function after having the surgery at Mt. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. Plaintiff had "significant C-5 weakness of the right upper extremity." Dr. Michael Cross, MD is a board certified orthopedic surgeon in Lafayette, Indiana. Dr. Michael Cross, MD is a orthopedic surgery specialist in New York, NY. In Frelinghuysen's words, he and Girardi decided that surgery "would not help." The argument that HSS's motion should be considered on the merits because it "sought relief on the same issues raised in HJD's timely motion," ignores the distinction in the CPLR between motions and cross motions and perpetuates an increasingly played end run around the Court of Appeals' bright line rule in Brill. Likewise, the legislative memorandum in support of the amendment to CPLR 3212(a) is concerned with the disruption to court calendars by a motion interposed on the eve of trial (Sponsor's Mem, L. 1996, ch 492 reprinted in 1996 McKinney's Session Laws of NY at 2432-2433). If it was indeed the Legislature's intent to preclude dilatory conduct, not to deprive a court of the ability to resolve an entire case summarily, then it falls within the observation of the United States Supreme Court in Holy Trinity Church v United States (143 US 457, 472 [1892]) that "however broad the language of the statute may be, the act, [*15]although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute.". The motion court properly dismissed the case as against HJD. Mon 7:00 am - 6:00 pm. About eight years later, in March 2002, plaintiff returned to HSS complaining of lower back pain and severe left leg pain; he was treated with a course of steroid injections. hurley joggers womens; sink clips not long enough; viewsonic vx3276 mhd reset; usaa dental insurance number; dr michael cross leaving hss. However, disregarding the untimeliness of HSS's motion, the court held that issues of fact precluded HSS from being granted summary judgment. Decided on December 24, 2013 new york, ny zip 10021-099 phone: (212) 774-2114 fax: (646) 797-8298 The provider's authorized official is Michael B Cross . Type a specific doctor's name, body part, procedure or condition, then choose from the options. 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." 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. Dr. Michael B. Cross's office location Michael B. Accordingly, the Court of Appeals refused to address the motion on its merits, pursuant to CPLR 3212(a). The days prior to my operation contain numerous phone calls making sure I knew where I was going and what I should expect. In other words, Brill calls on the courts to lead by enforcing the words of the statute, rather than let attorney practice slowly eat away at the integrity of our judicial system. 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). Can't say enough about how friendly the staff was at this facility. Get free summaries of new New York Appellate Division, First Department opinions delivered to your inbox! 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). Dr. Michael Cross, MD works in New York, NY as an Orthopedic Surgery Specialist and has 16 years experience. 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. hilton houston address. As to HJD, the court found that, "without any doubt, [its] moving papers, primarily through the thorough opinions expressed by [its expert], [made] out a prima facie case for the relief sought." Quite likely, the City's legal argument would have been dispositive. 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. At [HJD] he was a patient from only February 2005 to September 2005, and he was also a patient at Mt. Top Hip Replacement and Knee Replacement Surgeons | HSS Footnote 2: Supreme Court's extension of the time to file dispositive motions had given the parties a total of 82 days after the filing of the note of issue on August 24, 2011. HJD timely moved for summary judgment on November 11, 2011. Tue 7:00 am . ), 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 dismissing plaintiff's claim of lack of informed consent, and otherwise denied the motion, should be affirmed, without costs; the judgment of the same court and Justice, entered August 20, 2012, dismissing the complaint as against defendant New York University Medical Center Hospital for Joint Diseases, should be affirmed, without costs. 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. Jewish-Hillside Med. Removal of Skunks, Raccoons, Squirrels, Bats, Snakes, and More! Co., LLC (48 AD3d 337 [1st Dept 2008]), for the principle that there is an exception to Brill for cases where a late motion or cross motion is essentially duplicative of a timely motion. Michael B. Plaintiff commenced his lawsuit in May 2007, claiming medical malpractice and failure to secure informed consent. In March of 2002, plaintiff returned to HSS with complaints of pain in his lower back and left leg. As to HSS, the court noted that the motion was clearly untimely, without explanation. Cross appeals from the order of the Supreme Court, New York County (Alice Schlesinger, J. 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). Michael CROSS | Assistant Attending Orthopaedic Surgeon | Hospital for by Peter Gordon. 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. The Hospital for Special Surgery a pre-eminent facility for musculoskeletal health and orthopedics and a New . 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]. Dr. Michael Cross, MD, Orthopedic Surgery | Indianapolis, IN | WebMD On April 11, 2003, an MRI revealed a narrowing of the spinal canal and the neural foramen with disc protrusions.