"[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. 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). Opinion by Feinman, J. 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." 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. Corp., 91 NY2d 291, 296 [1998]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept 2000]). 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. Mystery solved: Extell is building a 30-story, 400,000-square-foot medical tower. Health & Living. In opposing the "cross motion," the plaintiff argued that it was untimely, and, secondarily, that it was devoid of merit. 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. 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]). The Mt. All rights reserved. I obviously highly recommend Dr. Cross and his team. Plaintiff did not return to HSS for slightly over one year after this visit. In James, the defendant moved for summary judgment and the codefendant served its cross motion late but before the original motion had been decided; James held that the untimely cross motion should have been considered as the original motion was still pending and both could have been decided together. Nonmovants will suffer no prejudice. The motion by HJD was submitted on November 11, 2011, three days before the deadline of November 14, 2011 imposed by the motion court under CPLR 3212(a). Removal of Skunks, Raccoons, Squirrels, Bats, Snakes, and More! The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party (Mango v Long Is. "The question remains whether HSS should remain a viable defendant in this case. 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. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. 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. (108 AD3d 403, 404 [1st Dept 2013]) According to plaintiff, he understood that surgery would be performed in late December, and he began obtaining the necessary medical clearances. On October 1, 2004, plaintiff saw defendant Dr. Peter Frelinghuysen, an orthopaedic surgeon at HSS, who noted that he was "very concerned" that there was only a small chance that surgery would improve plaintiff's condition. 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. Its motion papers included an affidavit of a medical expert who discussed plaintiff's medical history as seen in the records. He graduated from Vanderbilt University School Of Medicine in 2006. Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. 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." 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). Musculoskeletal Infection Society 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.). On November 11, 2011, HJD moved for summary judgment, making its motion returnable on December 14, 2011. Thus, the primary objective of Brill to discourage dilatory conduct is not implicated (see Fofana v 41 W. 34th St., LLC, 71 AD3d 445, 448 [1st Dept 2010], lv denied 14 NY3d 713 [2010]). The motion court granted HJD's motion and denied the motion of HSS. Acknowledgment Hospital for Special Surgery gratefully thanks the Autumn Benefit Committee for ongoing support and major funding for . 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." In June 2004, plaintiff returned to HSS with continuing complaints of progressive right shoulder weakness, increased neck pain and decreased balance. He submitted the affidavit of his medical expert, Michael J. Murphy, M.D., an orthopedic surgeon practicing in Connecticut. Cross, MD. Finally, we note the dissent's concern that allowing this litigation to proceed based on plaintiff's particular theory of negligence could result in placing surgeons in an impossible situation either of performing a procedure that is deemed ill-advised and being subject to any liability for aggravation of a condition, or declining and being subject to liability for refusing to [*11]assume the risk that the surgery entails. Burns v Gonzalez, 307 AD2d 863, 864-865 [1st Dept 2003]; Garrison v City of New York, 300 AD2d 14, 15 [1st Dept 2002], lv denied 99 NY2d 510 [2003]). Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J. Plaintiff's expert does not even address the question of whether, taking plaintiff's obviously compromised physical condition into account, it was a departure from good and accepted medical practice to pursue a conservative course of treatment rather than assume the risk of surgical intervention. 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. Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. Health A-Z. by Peter Gordon. It wrote, 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. In February 2005, plaintiff sought treatment at defendant New York University Medical Center Hospital for Joint Diseases (HJD). HSS Doctors: Book an Appointment Online Today Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. The Best of the Best in Orthopedic Surgery. Hospital for Special Surgery (HSS) President and CEO Louis A. Shapiro and Surgeon-in Chief and Medical Director Bryan T. Kelly, MD, today announced the appointment of Michael P. Ast, MD, hip and knee replacement surgeon and assistant professor of orthopaedic surgery, as the new Vice-Chair of the HSS Innovation Institute and Chief Medical After surgery, he was pain-free but did not recover a full range of motion in his upper left arm. 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. 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]). After residency, Dr. Cross completed a fellowship in Adult Reconstruction at Rush University Medical Center, where he won the Jorge O. Galante, MD Fellow Research Award. As defendant Hospital for Special Surgery (together with codefendants Frelinghuysen and Girardi, HSS) concedes, its cross motion was untimely, and it did not allege any good cause for its delay. ), 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, and from 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. Sinai Hospital in December 2005, with no objective sign of improvement in physical function after over 10 months, according to his surgeon's report and tests taken at HJD's neurology clinic in October, 2006. Mon 7:00 am - 6:00 pm. 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 This is also reflected in their individual motion papers. 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.". The progress notes from June 25, 2005 indicate, in part, that he had "marked stenosis throughout spine," and "marked atrophy at both shoulder girdles." hilton houston address. Dr. Michael B. Plaintiff cites no precedent for imposing liability under these circumstances, and no comparable New York case has been located. 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. Mobile Navigation Menu. Skip to main content. Here, at the time HSS submitted its untimely motion for summary judgment, the proceedings were already stayed by the concededly timely summary judgment motion brought by HJD. Orthopaedic Research Society, Make an appointment with In that regard, the majority's disposition is antithetical, directing a party to try a case under circumstances to which Brill is inapposite because trial has been delayed not by an eleventh-hour summary judgment motion, but by one that is altogether timely. . Because of the particular procedural posture of this matter, the order directing that it proceed to trial is ultimately futile, but application of the majority's rationale will unnecessarily burden both courts and litigants. 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 We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it. An MRI of his cervical spine taken the same day found "severe central canal and severe neural foraminal stenosis," resulting in "severe myelomalacia of the spinal cord" from C3 to mid-C5 level. This site is protected by reCAPTCHA and the Google, New York Appellate Division, First Department, New York Appellate Division, First Department Decisions. 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). Were the motions properly labeled they would not be judicially considered without an explanation for the delay. Furthermore, both the memorandum and Brill identify an adversarial party's lack of adequate time to prepare a response to the motion as the problem to be addressed. The plaintiff's expert's opinion is equally conclusory whether it is applied to the asserted negligence of either [*18]facility, and if it does not suffice to sustain the action as against HJD, it does not suffice to sustain the action as against HSS. Hospital for Special Surgery/Cornell Medical Center Residency, Orthopaedic Surgery, 2007 - 2012. Time Program Topic Faculty; Orthopaedic Summit. 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 MedicineNet. Co. (294 AD2d 268, 272 [1st Dept 2002], affd 99 NY2d 639 [2003]). New York County (Alice Schlesinger, J. with the kind of [*12]degeneration of the spinal cord [plaintiff] had, risk[ed] creating symptoms in the hands or feet. There is nothing in the language of the statute to suggest this and it opens the door to abuse; once one movant has timely filed, any other party can argue that its motion, no matter when filed, should be addressed. 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. 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. 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. Hip, knee surgeons with NYC's best value outcomes at HSS Newsroom Contacts Tracy Hickenbottom Assistant Vice President, Public Relations & Social Media mediarelations@hss.edu (212) 606-1197 Noelle Carnevale Associate Director, Public Relations mediarelations@hss.edu (212) 606-1197 Rachael Rennich Senior Manager, Public Relations Dr. Petrizzo testified that the overwhelming majority of patients with cervical myelopathy do not regain function after decompression surgery. "Thus, the rationale for the court's denial was articulated as being that the "cross motion" was untimely. As a point of reference, the statutory 120-day maximum expired on December 22, 2011. Here, however, because HSS and HJD have different treatment histories with plaintiff, HJD's timely motion did not clearly put plaintiff on notice of the need to gather evidence in opposition to the arguments ultimately proffered by the HSS defendants. 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]. Dr. Cross is one of the most pleasant medical providers that I have ever come in contact with. Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. 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. As this Court recently noted in Williams v New York City Tr. 523 e 72nd st attention: michael cross, m.d. Our focus is the rehabilitation of lives, delivered through evidenced-based therapy, with . Everyone was professional. In sum, an outdated, pre-Brill interpretation of the amended CPLR 3212(a) continued to hold sway in Lapin. 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. The motion court properly dismissed the case as against HJD. An MRI taken of his right shoulder in May 2005 showed "severe atrophy" of certain muscles and "mild atrophy" of other muscles, "likely due to the patient's cervical myelomalacia." OrthoIndy Hospital is physician-owned and operated. Education VANDERBILT UNIV SCH OF MED, Medical School 2006 In 1994, when plaintiff was 53 years old, he underwent spinal surgery at defendant Hospital for Special Surgery, to address multilevel cervical stenosis with myelopathy and radiculopathy, which, over the course of five years, had led to progressive weakness in his left shoulder and upper extremities. Here, the modestly late motion submitted by HSS sought relief on the same issues raised in 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. [*17]. I even liked the food I compared it to high-end diner fare). Although the system mainly runs in the . 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. Ctr., 123 AD2d 843 [2d Dept 1986]). Type a specific doctor's name, body part, procedure or condition, then choose from the options. Michael B. 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. The courts will no longer have to address the kinds of questions we address here. He attended Washington University in St. Louis for his undergraduate education, where he double majored in chemistry and mathematics/statistics and played varsity football. Even if we were to find that the Court of Appeals intended for an exception to be carved out of Brill for incorrectly labeled "me too cross motions," that is, motions relying on the arguments and evidence of the originally filed motions, to the extent HSS's motion against a nonmoving party can be properly considered such a motion, the motion court correctly found that it is not merely a duplication of HJD's timely motion. The gravamen of his claim is that HSS and HJD failed to timely perform surgery upon him, leaving him with neurological and muscular damage that would not have occurred had the surgery been performed earlier. 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. Find Hospital for Special Surgery on the . In the case at bar, HSS relies on Lapin v Atlantic Realty Apts. The result will be judicial economy, as well as lawyerly economy. 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. hurley joggers womens; sink clips not long enough; viewsonic vx3276 mhd reset; usaa dental insurance number; dr michael cross leaving hss. 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." 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. 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). . He accepts multiple insurance plans, including Medicare. ford edge liftgate reset; 2007 dodge grand caravan rear shocks; gotham point lottery results; singer serger heavy duty manual; spectacle hut tampines mall Specialties. The authorized official title is Physician and has the following contact phone number (212) 774-2114. 211 likes. 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.". Dr. Michael Cross' Practice at the HSS Pavilion 541 East 71st Street New York, NY 10021 Physicians at this location Specialties Family Medicine Orthopedic Spine Surgery Orthopedic Surgery. Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ. In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. Moreover, while there is mention of a surgical option in the 2004 hospital records, the evidence does not show that evaluation of the attendant risks and benefits was undertaken until October 2004, culminating in the December 2004 decision that the associated risk was too great. 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. Dr. Frelinghuysen testified that, in or about December 2004, after he reviewed plaintiff's film with Dr. Frederico Girardi, another HSS orthopaedic surgeon, he decided that surgery was not an option for treating plaintiff because it would expose plaintiff to myriad risks, and not improve his condition. ), 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. 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. This was supported by Dr. Hecht's finding that there was no substantial neurological improvement in plaintiff's condition after his surgery at Mt. Required fields are marked *. An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). To lend legal support to plaintiff's theory would place the surgeon in an impossible situation perform a procedure that is deemed to be ill-advised, taking into consideration the individual physician's experience and the available hospital facilities, and be subject to liability for any aggravation of the patient's condition or decline to operate and face liability for refusing to assume the substantial risk that surgery entails. According to the patient notes, the examining physician found severe upper extremity atrophy. [FN3] It is a distorted analysis of my position. Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. Find All Providers . The days prior to my operation contain numerous phone calls making sure I knew where I was going and what I should expect. 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. 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. By notice of cross motion dated January 10, 2012, HSS moved for summary judgment and dismissal, relying on HJD's expert's affidavit and that of defendant Girardi. The motion by HSS was submitted shortly after the end of the holiday season on January 10, 2012, and the respective motions were finally decided by the motion court on July 16, 2012, over seven months later. Kershaw v Hospital for Special Surgery 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. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. Footnotes Jewish-Hillside Med. I simply note that Brill is inapposite to the facts of this matter and that both the decision and the statute it construes apply only to a party whose motion has the effect of staying and delaying trial. A late motion filing is properly entertained when it raises nearly identical issues to one timely made (see Lapin v Atlantic Realty Apts. The NPI number of this provider is 1235397043 and was assigned on May 2008. . RX Drugs & Medications Vitamins & Supplements. 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. 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. 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). at 236, citing Andrea, Miceli, Brill, and Kihl). Electrical studies performed on October 26, 2006 revealed no significant change from those done in 2005 although there was evidence of fibrotic changes; [*4]the studies showed the presence of moderate right and mild left carpal tunnel syndrome.

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