Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. He has 16 years of experience. Find Hospital for Special Surgery on the . Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. at 653). We help patients restore the quality of life they deserve and desire. Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. 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]. After surgery, he was pain-free but did not recover a full range of motion in his upper left arm. 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. 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). Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ. 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 Dr. Machler reported that plaintiff had mildly positive reactions to molybdenum, tobramycin, benzoic acid, and formaldehyde. The cross movant may rely on the papers submitted with the main motion to support the relief sought. 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. Cross is a radiation oncologist. [*2]Pollack, Pollack, Isaac & DeCicco, New York (Brian J. Isaac of counsel), and Shoshana T. Bookson, New York, for respondent-appellant. The Best of the Best in Orthopedic Surgery. 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. Dr. Cross is one of the most pleasant medical providers that I have ever come in contact with. The nurses and assistants were wonderful and were focused on managing my (intense) pain. Top Hip Replacement and Knee Replacement Surgeons | HSS 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. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. 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. 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. Hospital For Special Surgery. 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. Cross, MD. In July 2005, he was examined by an orthopedic surgeon who determined that plaintiff needed surgery to prevent his condition from worsening, not in order to regain function. 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. PDF Expert Opinion provided by Dr. Michael Cross 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]). for cervical spine cases. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. carlson extra wide pet gate with lift handle prince of peace premium jasmine green tea Thus, Brill cannot be said to reflect an intent to abandon the conspicuous advantages of summary judgment for the sake of procedural formalism. Sinai for much of that time. 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. Altschuler, in turn, relied on a pre-Brill decision, James v Jamie Towers Hous. 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. 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. Opinion by Feinman, J. 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). 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. But most importantly, the dissent's approach is in derogation of CPLR 3212(a). Education VANDERBILT UNIV SCH OF MED, Medical School 2006 Find a Doctor: By Name, Specialty, Location & Insurance 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. 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." In our view, Brill expresses the Court's overall desire to curb "sloppy" litigation practices, one of them being late summary judgment motions. 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. Orthopedic surgeon to know: Dr. Michael B. Cross of Hospital for 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]). 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. Michael B. Cross - OSET | Orthopaedic Summit Remote Second Opinion 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. New York, NY, 10021. He further opined that there was no identifiable injury sustained in the four-month period between plaintiff's first visit at HJD and when he first went to Mt. 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. Moreover, "because of a phenomenon called rebound myelopathy, an operation . Ten months after the surgery at Mt. The motion court also correctly denied summary judgment to HSS because its motion was untimely made without any explanation for its untimeliness, let alone good cause (see CPLR 3212[a]). PDF Alumni Relections Across the Years This surgeon was submitted to G.O.S. 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. 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. ford edge liftgate reset; 2007 dodge grand caravan rear shocks; gotham point lottery results; singer serger heavy duty manual; spectacle hut tampines mall 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. [*17]. The undesirable practice sought to be prevented by revision of CPLR 3212(a) is the waste of resources expended in preparation for trial as the result of a belated summary judgment motion staying the proceedings. Jorge O. Galante, MD Fellow Research Award 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. HSS appealed from the denial of its "cross motion" and plaintiff cross-appealed from the grant of HJD's motion. . It wrote, 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. Associate Professor of Orthopaedic Surgery OrthoIndy. The motion court properly dismissed the case as against HJD. On November 11, 2011, HJD moved for summary judgment, making its motion returnable on December 14, 2011. Everyone was professional. 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." HSS-GR eConsult Second Opinion Sample - Issuu 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." The evidence will be construed in the light most favorable to the one moved against (see Young v New York City Health & Hosps. Save my name, email, and website in this browser for the next time I comment. Rather, we enforce the law as written by the legislature, and as explained in Brill. 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. Insurance Information for Hospital for Special Surgery | HSS 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]). The Hospital for Special Surgery a pre-eminent facility for musculoskeletal health and orthopedics and a New . Dr. Michael Ast, MD | Paramus, NJ | Orthopedic Surgeon | Vitals 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. Featured Providers Near You Dr. Brian Anthony Cole, MD Saint Elizabeth Edgewood Hospital 1 Medical Village Dr Edgewood, KY 41017. Given the budgetary constraints presently confronted by the court system, this is hardly a fitting time to require trial of a matter devoid of apparent merit and otherwise amenable to disposition on motion, and the "genuine need" to be accommodated is that of the court to proceed expeditiously (id.). 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. "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. The rule is that a cross motion is an improper vehicle for seeking relief from a nonmoving party (Mango v Long Is. Sinai. However, the expert failed to support his assertion with an analysis of the multiple diagnostic tests and physical examinations conducted over the years. Health & Living. Dr. Michael Cross - Great Orthopedic Surgeons 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. In opposing the "cross motion," the plaintiff argued that it was untimely, and, secondarily, that it was devoid of merit. Our focus is the rehabilitation of lives, delivered through evidenced-based therapy, with . Michael B. Cross, MD - 1133 Westchester Ave, White Plains, NY 10605 While continuing at HJD, plaintiff also sought treatment at Mt. Plaintiff had a history of severe cervical disc disease going back to 1989. He attended Washington University in St. Louis for his. There is a shorter minimum notice requirement, three or seven days, as compared with the minimum eight-day notice requirement in CPLR 2214(b). 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. Plaintiff filed his note of issue on August 24, 2011. 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. 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. 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." Hospital for Special Surgery/Cornell Medical Center Residency, Orthopaedic Surgery, 2007 - 2012. Thus, plaintiff failed to rebut HJD's prima facie entitlement to summary judgment. Find expert care and book online. by Peter Gordon. FOX REHABILITATION - 11 Photos & 12 Reviews - 7 Carnegie Plz, Cherry The courts will no longer have to address the kinds of questions we address here. 535 E 70th St . Dr. Petrizzo testified that the overwhelming majority of patients with cervical myelopathy do not regain function after decompression surgery. Likewise, there is no indication that plaintiff was prepared to undergo the procedure prior to October 2004, when he first consulted with Dr. Freylinghuysen. 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. (108 AD3d 403, 404 [1st Dept 2013]) [Habiterra Assocs. HSS Doctors: Book an Appointment Online Today Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. 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]). Nevertheless, the court observed that plaintiff's expert Dr. Michael J. Murphy clearly opined that the surgery was necessary, not so much to improve plaintiffs's condition, but to prevent it from worsening. 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 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. Dr. Michael A. Cross, MD | Radiation Oncologist | US News Doctors A cross motion is "merely a motion by any party against the party who made the original motion, made returnable at the same time as the original motion" (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1; see CPLR 2215). Cross, MD. Dr. Michael Alexiades, MD - Lake Success, NY - Doximity Dr. Michael Cross, MD, Orthopedic Surgery Specialist - New York, NY As a point of reference, the statutory 120-day maximum expired on December 22, 2011. According to the patient notes, the examining physician found severe upper extremity atrophy. Skip to main content. He currently practices at Hospital for Special Surgery and is affiliated with Hospital For Special Surgery. Order, Supreme Court, New York County (Alice Schlesinger, J. 35 Mayflower Avenue Unit B Stamford, CT 06906 Phone +1 (212) 987-OSET (6738) CONTACT US . Diseases & Conditions Procedures & Tests Symptoms & Signs. Of these, only molybdenum is a metal. It contends that in the interest of judicial economy we should not depart from "prior authority" that affords the court discretion to entertain a "marginally late filing" when there is merit to the application and no prejudice has been demonstrated, citing Burns v Gonzalez (307 AD2d 863 [1st Dept 2003]), and Garrison v City of New York (300 AD2d 14 [1st Dept 2002], lv denied 99 NY2d 510 [2003]). 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. 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. If you need help finding an appropriate doctor who takes your insurance, contact our HSSConnect at 877.606.1555. Ctr., 123 AD2d 843 [2d Dept 1986]). After surgery, Dr. Hecht observed that he did not "see a substantial neurologic improvement on [his] objective testing, but the patient does feel subjectively like he is improving." Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well" (16 NY3d at 81). Quite likely, the City's legal argument would have been dispositive. Dr. Michael Cross | Total Joint Replacement | OrthoIndy Hip & Knee Doctor 523 e 72nd st attention: michael cross, m.d. Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J. Michael B. Cross M.D - Orthopaedic Surgeon | New York NY Decided on December 24, 2013 Sign up for our free summaries and get the latest delivered directly to you. 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. Musculoskeletal Infection Society 2013 NY Slip Op 08548 dr michael cross leaving hss. I obviously highly recommend Dr. Cross and his team. The dissent would seemingly limit the reach 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. 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. He received his medical degree from University of Cincinnati College of Medicine and has been in practice for more than 20 years. Footnotes HSS Orthopedics Joins Forces With Stamford Health. "Thus, the rationale for the court's denial was articulated as being that the "cross motion" was untimely. Dr. Michael B. Cross's office location Michael B. He received his medical degree from Vanderbilt University School of Medicine and has been in practice between 11-20 years..
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