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]). Dr. Michael Cross - Great Orthopedic Surgeons Education VANDERBILT UNIV SCH OF MED, Medical School 2006 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. Find Hospital for Special Surgery on the . 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. In our view, Brill expresses the Court's overall desire to curb "sloppy" litigation practices, one of them being late summary judgment motions. Get free summaries of new New York Appellate Division, First Department opinions delivered to your inbox! by Peter Gordon. Strict and rigid application of Brill is even less understandable given the similarity of the grounds advanced by the respective hospitals in support of their summary judgment motions and the ground upon which disposition rests. In June 2004, plaintiff returned to HSS with continuing complaints of progressive right shoulder weakness, increased neck pain and decreased balance. 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. Dr. Michael B. Cross, MD | Lafayette, IN | Orthopedist | US News Doctors Sinai, in October 2006, plaintiff returned to HJD's neurology clinic, reporting a lack of improvement in upper extremity strength, and some pain and numbness on the right arm and hand. Maysville Radiology Group 991 Medical Park Dr Maysville, KY 41056. 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. FEINMAN, J. Dr. Michael Cross, MD, Orthopedic Surgery | Indianapolis, IN | WebMD 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. Ctr., 123 AD2d 843 [2d Dept 1986]). Removal of Skunks, Raccoons, Squirrels, Bats, Snakes, and More! HSS argued to the motion court, as it does to this Court, that its motion should be considered on the merits because it merely presents the same arguments made by HJD. 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. According to plaintiff, he understood that surgery would be performed in late December, and he began obtaining the necessary medical clearances. Was seen ahead of scheduled appointment time. I even liked the food I compared it to high-end diner fare). Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. You're all set! Contact; Help; Partners; Blog; Press; Product; . RX Drugs & Medications Vitamins & Supplements. Here, HJD's submission of its moving papers a mere three days before the final date set by the trial court contravenes the spirit of Brill by depriving HSS of an adequate opportunity to timely file its own application for similar relief because, at such point in time, HSS is presumed to have been devoting its resources to preparation for trial (Brill, 2 NY2d at 651). Dr. Olsewski opined that based upon plaintiff's medical, diagnostic and surgical history, further cervical surgery would have been an "unjustifiable and extraordinarily risky and aggressive treatment option." Dr. Michael Cross, MD, Orthopedic Surgery Specialist - New York, NY [*7]. 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. Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. 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 Dr. Michael Cross, MD - Lafayette, IN | Orthopaedic Surgery NYC surgeon, beauty-queen wife settle divorce amid hooker allegations Physical therapy, pain management and treatment in HJD's neurology, hand and shoulder clinics were recommended. 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. In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. Michael B. 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. 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." They work like a well-oiled machine. 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. This opinion is uncorrected and subject to revision before publication in the Official Reports. In October, 2006, plaintiff returned to HJD again complaining of continued lack of strength in upper extremity and numbness and pain in the right arm and hand. When deciding a motion for summary judgment, the court's function is issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). Accordingly, the cross motion was properly denied, regardless of its merits. New York State Society of Orthopaedic Surgeons 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. Jean McDaniel Award, American Association of Hip and Knee Surgeons 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 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. 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. Plaintiff did not return to HSS for slightly over one year after this visit. Cross appeals from the order of the Supreme Court, New York County (Alice Schlesinger, J. A cross motion offers several advantages to the movant. Remote Second Opinion HSS appealed from the denial of its "cross motion" and plaintiff cross-appealed from the grant of HJD's motion. 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. Mobile Navigation Menu. 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. Hospital for Special Surgery Florida | Orthopaedic Services | Fort The problem in the case at bar is that HSS's motion, in addition to being untimely, is not a true cross motion. Dr. Michael Cross' Practice at the HSS Pavilion in New York, NY Decided on December 24, 2013 Cross, MD. This was supported by Dr. Hecht's finding that there was no substantial neurological improvement in plaintiff's condition after his surgery at Mt. 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. Cross M.D - Orthopaedic Surgeon - Home | Facebook dr michael cross leaving hss On November 19, 2004, the clinic notes indicate that Frelinghuysen planned to review the patient films with Girardi and "we will plan for an anterior cervical decompression and fusion at a later date." Michael B. Cross M.D - Orthopaedic Surgeon | New York NY 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. 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. 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. Cross M.D - Orthopaedic Surgeon, New York, New York. In that context, where "[t]he violation is clear," the "good cause" required to obtain relief from the statutory time limit is "a satisfactory explanation for the untimeliness" in filing the motion (id. Musculoskeletal Infection Society Dr. Michael B. Cross's office location Michael B. 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. He accepts multiple insurance plans, including Medicare. Dr. Michael Alexiades, MD - Lake Success, NY - Doximity 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." Sign up for our free summaries and get the latest delivered directly to you. 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. 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. Plaintiff underwent a two-stage cervical spine surgery in December 2005. Michael B. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. with the kind of [*12]degeneration of the spinal cord [plaintiff] had, risk[ed] creating symptoms in the hands or feet. 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. Kershaw v Hospital for Special Surgery :: 2013 :: New York Appellate While continuing at HJD, plaintiff also sought treatment at Mt. 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. Hospital For Special Surgery. [FN3] 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.). Published by New York State Law Reporting Bureau pursuant to Judiciary Law 431. Quite likely, the City's legal argument would have been dispositive. You already receive all suggested Justia Opinion Summary Newsletters. HSS Doctors: Book an Appointment Online Today Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. The Jewish Hospital 4777 E Galbraith Rd Cincinnati, OH 45236. 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 . 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. 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. If you know this doctor and/or would like to share more about his good work please feel free to add a comment below. 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 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). James, in turn, relied on Rosa v R.H. Macy Co. (272 AD2d 87 [1st Dept 2000]), where Macy moved for summary judgment and two other defendants untimely cross-moved against it for indemnity; the motion and another timely cross motion were still pending, and we held that the untimely cross motions should have been considered. Brill reiterates Kihl's statement that, " [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (2 NY3d at 652-653, quoting Kihl at 123). The court noted that Dr. Girardi at HSS "explained clearly that he believed that the cord was so damaged that the surgery would not have improved anything" and Dr. Hecht, who performed the surgery, acknowledged that plaintiff did not have any objective improvement. Tel: (212) 606-1000. Sinai, where he was first seen in the orthopedic clinic on April 21, 2005. Dr. Michael P. Ast, MD is a health care provider primarily located in Paramus, NJ, with another office in New York, NY. Copyright 2023 OrthoIndy. 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. Find expert care and book online. Michael B. Rather, we enforce the law as written by the legislature, and as explained in Brill. Find Providers by Condition. They work like a well-oiled machine. . Auto. You can explore additional available newsletters here. He graduated medical school from Vanderbilt University as a member of the Alpha Omega Alpha Medical Honor Society. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. Tramways in le-de-France - Wikipedia Footnote 2: Supreme Court's extension of the time to file dispositive motions had given the parties a total of 82 days after the filing of the note of issue on August 24, 2011. Differences necessarily exist because [plaintiff] was a patient at HSS for an extended time before he came to [HJD]. Our focus is the rehabilitation of lives, delivered through evidenced-based therapy, with . Since trial of this matter was already stayed by HJD's timely motion for summary judgment at the time HSS submitted its marginally late summary judgment motion which raises the same dispositive issue as the timely motion, refusing to entertain the subsequent motion does nothing to avoid the delay of trial and waste of judicial resources, the primary purposes of Brill, by requiring trial of a virtually identical lawsuit ripe for summary disposition. He did not separate the claims plaintiff made against HJD and HSS, and did not address the opinions of HJD's expert regarding causation. Plaintiff's MRI was reviewed and it was determined that surgery was not indicated. Granted, the HSS motion is not a cross motion, as denominated, and as such it is untimely (CPLR 2215). 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). 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. 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. Michael B. The progress notes from June 25, 2005 indicate, in part, that he had "marked stenosis throughout spine," and "marked atrophy at both shoulder girdles." Plaintiff cites no precedent for imposing liability under these circumstances, and no comparable New York case has been located. While defendants have not raised the question of whether the complaint is actionable, the issue should nevertheless be decided preliminarily. The course adopted by plaintiff of locating a medical team possessing the requisite skills at a hospital equipped with the appropriate facilities represents a seemingly optimal outcome which, as a matter of policy, should not be compromised by the threat of litigation. Sinai orthopedic surgeon observed that he did not "see a substantial neurologic improvement on [his] objective testing, but the patient does feel subjectively like he is improving.". Footnote 1:Girardi testified that the notation that he and Frelinghuysen had recommended any particular surgery was "incorrect." Can't say enough about how friendly the staff was at this facility. 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." On November 11, 2011, HJD moved for summary judgment, making its motion returnable on December 14, 2011. Dr. Murphy stated that the delays were a departure from the standards of good medical practice. DEPUTY CLERK Orthopedic surgeon to know: Dr. Michael B. Cross of Hospital for Find All Providers . We help patients restore the quality of life they deserve and desire. . 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. 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. Thus, plaintiff failed to rebut HJD's prima facie entitlement to summary judgment. Dr. Michael B. Hospital for Special Surgery scores more room to operate Menu. In opposition plaintiff's expert did not offer an opinion as to what specific injury plaintiff endured as a result of HJD's decision not to perform surgery and made only broad conjectures which were insufficient to defeat HJD's motion (see Foster-Sturrup v Long, 95 AD3d 726 [1st Dept 2012]; Callistro v Bebbington, 94 AD3d 408 [1st Dept 2012], affd 20 NY3d 945 [2012]). FOX REHABILITATION - 11 Photos & 12 Reviews - 7 Carnegie Plz, Cherry fact, barring summary resolution. Since surgery carried serious risks and would likely not benefit the patient, conservative management with physical therapy and pain management would be more appropriate. Auth. An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). Health A-Z. Sinai for much of that time. 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. Your email address will not be published. Drugs & Supplements. Socy., 266 NY 71, 88 [1934]). McAloon & Friedman, New York (Gina Bernardi Di Folco of counsel), for respondent. 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]). 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. It is a distorted analysis of my position. 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. 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.". According to Dr. Olsewski, the best case scenario "was to stop further progression of the cervical myelopathy"; the worst could have resulted in permanent paralysis or death, risks "well beyond the standard. dr michael cross leaving hss [Habiterra Assocs. carlson extra wide pet gate with lift handle prince of peace premium jasmine green tea Lapin relied on Altschuler v Gramatan Mgt., Inc. (27 AD3d 304 [1st Dept 2006]), which held it proper to consider the untimely "cross motion," in particular because it was "largely based" on the same arguments raised in the timely motion for summary judgment, and the same findings would apply for both it and the timely motion. I obviously highly recommend Dr. Cross and his team. Orthopaedic Research Society, Make an appointment with Thus, there were issues of fact raised "as to the advisability of surgery sufficient to defeat the motion for summary judgment on the merits.". It wrote, hilton houston address. Sinai where plaintiff later underwent a two stage revision cervical laminectomy with fusion. Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740, 741-742 [2d Dept 2012] [failure to receive significant outstanding discovery before the deadline for making motion for summary judgment provides good cause for allowing a late-filed motion for summary judgment]; see also Kase v H.E.E. 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. According to the affidavit, Murphy reviewed the medical records and opined that surgery for plaintiff was "indicated as early as June 2003 when the diagnosis of cervical spondylitic myelopathy was made," and from that time until December 2005 when surgery was performed, plaintiff's neurological condition deteriorated. 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. THIS CONSTITUTES THE DECISION AND ORDER Michael CROSS | Assistant Attending Orthopaedic Surgeon | Hospital for In December 1994, plaintiff had surgery at HSS to address multilevel cervical stenosis with myelopathy and radiculopathy, a condition that existed for a period of time which caused plaintiff continuous weakness of his upper extremities including left shoulder. Accordingly, the order should be modified to the extent of granting defendant HSS's motion for summary judgment.

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