In this medical malpractice case (first cousin to legal malpractice) Judge Lobis of Supreme Court, New York County discusses how a seemingly good defendant’s Motion for Summary judgment fails and why battling about the Note of Issue was a waste of everyone’s time.
DeSantis v Zito ; 2011 NY Slip Op 31059(U) ; April 24, 2011; Supreme Court, New York County
Docket Number: 109753/09; Judge: Joan B. Lobis is a case about what might seem to be an obvious case of medical malpractice. Doctor is performing a procedure for the prostate, and perforates the bladder. Lifelong consequences ensue. Doctor and facility are sued. Is facility at fault? Not yet.
"The Moving Defendants failed to meet their initial burden in demonstrating that they art entitled to summary judgment. Their expert’s affidavit was highly conclusory, failed to identify any standard of care, and failed to point to anything in the records to back up his vague statements that the Moving Defendants’ staff acted appropriately at all times. Additionally, the Moving Defendants’ papers were deficient in that they failed to annex any of Mr. DeSantis’ medical records to their motion, even though Dr. Waldbaum maintains that he reviewed and relied on those records in forming his opinion. Moreover, neither counsel for the Moving Defendants nor their expert addresses plaintiffs’ separate claims sounding in negligent hiring and supervision, lack of informed consent, or vicarious liability for the acts of Dr. Zito. As the movants failed to meet their initial burden, the court need not reach the sufficiency of plaintiffs’ opposition papers. Summary judgment is denied."
Plaintiff filed a note of issue during motion practice. Does this merit a sanction? Not yet.
"Given the fact that no one disputes that Dr. Zito was timely served with a copy of the note of issue, the court is not convinced, at this point, that plaintiffs’ alleged failure to serve the Moving defendants with a copy of the note of issue amounts to anything more than law office failure on the part of plaintiff "