Dr. Michael B. As to HSS, the court noted that the motion was clearly untimely, without explanation. 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." This site is protected by reCAPTCHA and the Google, New York Appellate Division, First Department, New York Appellate Division, First Department Decisions. 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. 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. On November 11, 2011, HJD moved for summary judgment, making its motion returnable on December 14, 2011. [*9]. 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. All rights reserved. Auto. 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]). Sign up for our free summaries and get the latest delivered directly to you. 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. Feinman, J. We help patients restore the quality of life they deserve and desire. Michael B. 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. Thus, Brill cannot be said to reflect an intent to abandon the conspicuous advantages of summary judgment for the sake of procedural formalism. for cervical spine cases. HJD timely moved for summary judgment on November 11, 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." Sinai where plaintiff later underwent a two stage revision cervical laminectomy with fusion. 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 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. Co., 95 AD3d 568, 560 [1st Dept 2012] [court's clerical error, [*10]explained through an affidavit of the paralegal, provided good cause for granting the motion seeking renewal of the motion for summary judgment]). 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." 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." Order, Supreme Court, New York County (Alice Schlesinger, J. New York Presbyterian Hospital Internship, Preliminary Year, 2006 . Dr. Michael B. "Thus, the rationale for the court's denial was articulated as being that the "cross motion" was untimely. Footnote 4: The dissent overlooks the very different lengths of treatment offered to plaintiff by HSS and HJD. It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is "good cause shown" for the delay. Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. [*7]. He underwent a course of steroid injections. 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. Dr. Michael Allen Cross 5053 Wooster Rd Cincinnati, OH 45226. This is an aberrant medical malpractice action brought against two hospitals for declining to provide additional surgical treatment to plaintiff because, in their estimation, further surgical intervention presented an unjustifiable risk of quadriplegia or death and offered little to no prospect of relieving his symptomatology. 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." 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. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. Find expert care and book online. According to the patient notes, the examining physician found severe upper extremity atrophy. 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). Plaintiff had a history of severe cervical disc disease going back to 1989. In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. 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). However, for reasons bereft of any sound basis in law or judicial policy, it refuses, primarily on procedural grounds, to apply the same reasoning to dismiss the complaint as against HSS. His specialties include Orthopedic Surgeon. 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. 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." All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P. 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. Required fields are marked *. 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. Visit Website. Mobile Navigation Menu. Finally, the majority adopts the trial court's conclusion that the expert's opinion is imprecise with respect to the nature of the alleged deterioration in plaintiff's condition and the extent to which each hospital bears responsibility. Dr. Michael B. Cross is a radiation oncologist. Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed (see Isolabella v Sapir, 96 AD3d 427, 427 [1st Dept 2012]). 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. Unlike the dissent, we do not find that a straightforward interpretation of the statute, or Brill, leads to "absurd and unintended consequences," especially as the Court of Appeals acknowledges in Brill that if the strictures of CPLR 3212(a) are applied "as written and intended," there may be situations where a meritorious summary judgment motion may be [*8]denied, "burdening the litigants and trial calendar with a case that in fact leaves nothing to try" as was the result in Brill (2 NY3d at 653). 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. Specialties: We provide physical, occupational, and speech therapy primarily in an in-home setting for the older adult community, and with recent addition of services at our skilled nursing facilities, outpatient and pediatric settings. You're all set! 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). and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. Dr. Michael B. Cross's office location Michael B. Accordingly, the cross motion was properly denied, regardless of its merits. It is a distorted analysis of my position. HSS Orthopedics Joins Forces With Stamford Health. 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]. New York, NY, 10021. In July, 2005, plaintiff saw orthopaedic surgeon Dr. Andrew Hecht of Mt. Jean McDaniel Award, American Association of Hip and Knee Surgeons Peter commented in his entry: I had an amazing experience with Dr. Cross and his team at the Hospital for Special Surgery. 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. Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. Neither the motion court nor the majority identifies any prejudice that was incurred by any party due to HSS's motion that might warrant requiring HSS to forfeit summary determination. 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 clinic notes also indicate that plaintiff told the examining physician that he had recently secured a job and was not interested "whatsoever" in immediate surgery; plaintiff disputes this and says he was not working at that time. ), entered July 16, 2012, affirmed, without costs. Remote Second Opinion Health insurers that provide access to Hospital for Special Surgery (click the insurance company name for more details) Aetna Affinity by Molina Healthcare Blue Cross Blue Shield - Empire Blue Cross Blue Shield - Horizon Dr. Petrizzo testified that the overwhelming majority of patients with cervical myelopathy do not regain function after decompression surgery. In Levinson we held that there was no reason to address whether one of the "cross motions" was untimely because the moving defendants' timely motion had put plaintiff on notice that he needed to rebut the prima facie showing that he had not met the serious injury threshold; when the plaintiff in Levinson failed to do this, the complaint was correctly dismissed as to all codefendants. Dr. Michael A. While continuing at HJD, plaintiff also sought treatment at Mt. Differences necessarily exist because [plaintiff] was a patient at HSS for an extended time before he came to [HJD]. Michael B. Socy., 266 NY 71, 88 [1934]). 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 problem in the case at bar is that HSS's motion, in addition to being untimely, is not a true cross motion. Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for appellants-respondents. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. There is a shorter minimum notice requirement, three or seven days, as compared with the minimum eight-day notice requirement in CPLR 2214(b). 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. Michael M. Alexiades, MD Hip and Knee Replacement HSS Main Campus, Uniondale Call for an appointment 212.774.7557 Michael P. Ast, MD Hip and Knee Replacement HSS Main Campus, Paramus Call for an appointment 201.599.8056 Jason L. Blevins, MD Hip and Knee Replacement HSS Main Campus, Westchester Call for an appointment 212.606.1248 Cross, MD . You can explore additional available newsletters here. Plaintiff had "significant C-5 weakness of the right upper extremity." Dr. Cross joined HSS as a clinician-scientist and currently has over 55 publications and has received numerous research awards at local, regional, and national levels, including the 2013 Frank Stinchfield Award from the Hip Society and the 2013 OREF/ORS Travel Award in Translational Research from the Orthopaedic Research Society. "Before this matter may proceed to trial, it will be necessary to decide, as a matter of law, whether a doctor has a duty to perform a surgical procedure requested by a patient despite, in the professional opinion of the doctor, the high risk and absence of benefit that such surgery entails. He currently practices at Hospital for Special Surgery and is affiliated with Hospital For Special Surgery. In the case at bar, HSS relies on Lapin v Atlantic Realty Apts. [FN3] new york, ny zip 10021-099 phone: (212) 774-2114 fax: (646) 797-8298 The provider's authorized official is Michael B Cross . 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. 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. 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. Physical therapy, pain management and treatment in HJD's neurology, hand and shoulder clinics were recommended. Plaintiff subsequently underwent the subject procedure at nonparty Mt. Granted, the HSS motion is not a cross motion, as denominated, and as such it is untimely (CPLR 2215). 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. 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. Dr. Cross earned his bachelors degree from Washington University in St. Louis in 2002. 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. [*17]. Mystery solved: Extell is building a 30-story, 400,000-square-foot medical tower. In the opinion of HJD's expert, surgery would have been an "unjustifiable and extraordinarily risky and aggressive treatment option," as no surgery would have been able to reverse plaintiff's "significant" neurological deficits that had existed for many years. The progress notes from June 25, 2005 indicate, in part, that he had "marked stenosis throughout spine," and "marked atrophy at both shoulder girdles." Removal of Skunks, Raccoons, Squirrels, Bats, Snakes, and More! Hospital for Special Surgery and the HSS Alumni Association gratefully thank the Autumn Beneit Committee for ongoing support and major funding for several medical education initiatives, including publication of . 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 M. Alexiades is an orthopedist in Lake Success, New York and is affiliated with multiple hospitals in the area, including Hospital for Special Surgery and New York-Presbyterian. 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. 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). Unlike Brill, the circumstances presented by the instant matter do not furnish a compelling reason to depart from prior authority affording a court discretion to entertain a marginally late filing where the party's application has merit and no prejudice has been demonstrated by an adversary (see e.g. 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. 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. At [HJD] he was a patient from only February 2005 to September 2005, and he was also a patient at Mt. 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). 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 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. See times, locations, directions & contact information for Dr. Michael Cross in Indianapolis, IN. He then attended medical school at Vanderbilt University, graduating in 2006. Sinai, where he was first seen in the orthopedic clinic on April 21, 2005. dr michael cross leaving hss. 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). 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. HSS Florida is a joint venture with Tenet Healthcare. [*2]Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), and Shoshana T. Bookson, New York, for respondent-appellant. However, it is a well-established rule of statutory construction that a court should avoid any interpretation that leads to absurd and unintended consequences (see Matter of Friedman-Kien v City of New York, 92 AD2d 827, 828-829 [1983], affd 61 NY2d 923 [1984], citing Matter of Chatlos v McGoldrick, 302 NY 380, 387-388 [1951]; McKinney's Cons Laws of NY, Book 1, Statutes, 92, 145, 147). Dr. Michael Brian Cross, MD Orthopedic Surgery Leave a review Orthoindy Northwest 8450 Northwest Blvd, Indianapolis, IN, 46278 12 other locations (317) 802-2000 Overview Locations OVERVIEW. Find Providers by Condition. Dr. Michael P. Ast, MD is a health care provider primarily located in Paramus, NJ, with another office in New York, NY. Brill v City of New York (2 NY3d 648 [2004]) addressed the "recurring scenario" of litigants filing late summary judgment motions, in effect "ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice" (2 NY3d at 650).
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