], 5 NY3d 514 [2005], citing Brill [dismissal after ongoing failure to comply with discovery orders]; Miceli v State Farm Mut. The evidence will be construed in the light most favorable to the one moved against (see Young v New York City Health & Hosps. You can explore additional available newsletters here. He is board certified in Orthopedic Surgery and graduated from VANDERBILT UNIV SCH. Moreover, "because of a phenomenon called rebound myelopathy, an operation . His specialties include Orthopedic Surgeon. Plaintiff had "significant C-5 weakness of the right upper extremity." Differences necessarily exist because [plaintiff] was a patient at HSS for an extended time before he came to [HJD]. Brill emphasizes that summary judgment is advantageous to the parties by "avoiding needless litigation cost and delay" and constitutes "a great benefit both to the parties and to the overburdened New York State trial courts" since it "may resolve the entire case" (Brill, 2 NY3d at 651). 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. Dr. Michael Cross, MD works in New York, NY as an Orthopedic Surgery Specialist and has 16 years experience. 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 best working with the best. Altschuler, in turn, relied on a pre-Brill decision, James v Jamie Towers Hous. 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). 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. 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. Dr. Michael Cross, MD is a board certified orthopedic surgeon in Lafayette, Indiana. 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. 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. Mobile Navigation Menu. 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. 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. Order, Supreme Court, New York County (Alice Schlesinger, J. My stay at the Hotel for Special Surgery was flawless. Removal of Skunks, Raccoons, Squirrels, Bats, Snakes, and More! 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. Remote Second Opinion In short, the HSS "cross motion" was more than a late "me too" motion and should not have been considered on its merits. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. by Peter Gordon. 212.606.1823 212.734.3833 (fax) www.hss.edu alumni@hss.edu. new york, ny zip 10021-099 phone: (212) 774-2114 fax: (646) 797-8298 The provider's authorized official is Michael B Cross . 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. Sinai, and the only change in his condition was numbness in his right arm and hand, likely due to the development of carpal tunnel syndrome. 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. 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 by Peter Gordon. Sign up for our free summaries and get the latest delivered directly to you. Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for appellants-respondents. Maysville Radiology Group 991 Medical Park Dr Maysville, KY 41056. Skip to main content. 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. Visit Website. 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. He submitted the affidavit of his medical expert, Michael J. Murphy, M.D., an orthopedic surgeon practicing in Connecticut. 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. All concur except Tom, J.P. and Freedman, J. who dissent in part in an Opinion by Tom, J.P. 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. 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." Ins. Cross, MD. hilton houston address. Auth. Dr. Michael B. Plaintiff's MRI was reviewed and it was determined that surgery was not indicated. 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). 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). The clinic notes of June 11, 2004 indicate that his "symptoms have progressed with increased right shoulder atrophy"; a new round of studies was scheduled. However, the Court of Appeals intended no such exception, and to the extent this Court has created one, it did so, whether knowingly or unwittingly, by relying on precedents which predate Brill and which, if followed, will continue to perpetuate a culture of delay. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. [FN3] But most importantly, the dissent's approach is in derogation of CPLR 3212(a). HSS Florida is a joint venture with Tenet Healthcare. Dr. Machler reported that plaintiff had mildly positive reactions to molybdenum, tobramycin, benzoic acid, and formaldehyde. Allowing movants to file untimely, mislabeled "cross motions" without good cause shown for the delay, affords them an unfair and improper advantage. I even liked the food I compared it to high-end diner fare). 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. RX Drugs & Medications Vitamins & Supplements. Dr. Cross is one of the most pleasant medical providers that I have ever come in contact with. HSS Orthopedics Joins Forces With Stamford Health. We therefore affirm the branch of the motion court's order which denied HSS summary judgment as untimely made without consideration of its merits. 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. Contact; Help; Partners; Blog; Press; Product; . Health & Living. MedicineNet. Michael B. The motion court granted defendant HJD's motion for summary judgment and denied HSS's motion for the same relief. It is a distorted analysis of my position. Cross M.D - Orthopaedic Surgeon, New York, New York. 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]. He then attended medical school at Vanderbilt University, graduating in 2006. 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. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. Corp., 23 AD3d 202, 203 [1st Dept 2005]). In Frelinghuysen's words, he and Girardi decided that surgery "would not help." 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]). 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." 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.). OrthoIndy Hospital is physician-owned and operated. 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. He received his medical degree from University of Cincinnati College of Medicine and has been in practice for more than 20 years. Ctr., 123 AD2d 843 [2d Dept 1986]). The doctor also noted that plaintiff did not objectively regain any strength or function after having the surgery at Mt. Cross, MD 523 E 72nd Street, 7th Floor New York, NY 10021 Patient reviews All reviews have been submitted by patients after seeing the provider. 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. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. Dr. Cross earned his bachelors degree from Washington University in St. Louis in 2002. THIS CONSTITUTES THE DECISION AND ORDER They work like a well-oiled machine. While the Brill rule may have caused some practitioners and courts to wince at its bright line, by the time the motions at issue in this case were made, the Court of Appeals had already reiterated on more than one occasion, and in varying contexts, that it meant what it said (see Gibbs v St. Barnabas Hosp., 16 NY3d 74 [2010], citing Brill [dismissal after repeated failures to serve bill of particulars and noncompliance with enforcement order]; Andrea v Arnone, Hedin, Casker, Kennedy & Drake, Architects and Landscape Architects, P.C. 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 . 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 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). Contrary to the majority's assertion, I do not advocate limiting application "of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar." 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. Type a specific doctor's name, body part, procedure or condition, then choose from the options. Saint Elizabeth Edgewood Hospital 1 Medical Village Dr Edgewood, KY 41017. 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. dr michael cross leaving hss. 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." 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. If you need help finding an appropriate doctor who takes your insurance, contact our HSSConnect at 877.606.1555. 523 e 72nd st attention: michael cross, m.d. 2013 NY Slip Op 08548 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. Featured Providers Near You Dr. Brian Anthony Cole, MD Find Hospital for Special Surgery on the . He accepts multiple insurance plans, including Medicare. 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. Dr. Michael A. 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.). 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." Decided on December 24, 2013 Dr. Cross is board certified in Orthopedic Surgery. Were the motions properly labeled they would not be judicially considered without an explanation for the delay. They work like a well-oiled machine. He underwent a course of steroid injections. The result will be judicial economy, as well as lawyerly economy. 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." In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. Plaintiff commenced this action against HSS and HJD claiming, in essence, that defendant hospitals were negligent in declining to timely perform the surgery he sought, particularly, that their delay caused him to sustain injury that otherwise might have been avoided. Plaintiff had a history of severe cervical disc disease going back to 1989. (108 AD3d 403, 404 [1st Dept 2013]) 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. After residency, Dr. Cross completed his fellowship in Adult Reconstruction at Rush University Medical Center in 2013where he won the Jorge O. Galante, MD Fellow Research Award. 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). The notes also indicate that this doctor explained to plaintiff that the reason to do surgery would be to prevent worsening of his symptoms. Auto. Appellate Division, First Department Sinai. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. As to the procedural issue raised, the majority has devised a solution to a problem recognized neither by the Legislature nor the Court of Appeals. The HSS "cross motion," which runs from page 842 to page 1002 of the record on appeal, is comprised of many items not contained in the HJD motion papers, not the least of which is additional medical records not submitted by HJD. 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.
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