DEPUTY CLERK As most recently articulated in Gibbs: 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 . The motion court granted HJD's motion and denied the motion of HSS. 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." An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). 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. In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. Plaintiff cites no precedent for imposing liability under these circumstances, and no comparable New York case has been located. Cross is a radiation oncologist. 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). 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]). 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. Dr. Michael Cross, MD is a board certified orthopedic surgeon in Lafayette, Indiana. He attended Washington University in St. Louis for his undergraduate education, where he double majored in chemistry and mathematics/statistics and played varsity football. In Brill the Court of Appeals indicated that late-filed summary judgment motions are "another example of sloppy practice threatening our judicial system" (2 NY3d at 652, emphasis added), and pointed to its earlier decision, Kihl v Pfeffer (94 NY2d 118 [1999]), which affirmed dismissal of the complaint because the plaintiff failed to respond to a court order within the court-ordered time frame. Allowing movants to file untimely, mislabeled "cross motions" without good cause shown for the delay, affords them an unfair and improper advantage. He graduated from Vanderbilt University School Of Medicine in 2006. Cross appeals from the order of the Supreme Court, "It is well settled that the duty owed by one member of society to another is a legal issue for the courts' (Eiseman v State of New York, 70 NY2d 175, 187 [1987]). 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. 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). This surgeon was submitted to G.O.S. This was supported by Dr. Hecht's finding that there was no substantial neurological improvement in plaintiff's condition after his surgery at Mt. Cross, MD . 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." 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." He has 16 years of experience. Nor is this court's recent holding in Levinson v Mollah (105 AD3d 644 [1st Dept 2013]) on point. 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). Auth. Drugs & Supplements. 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. 523 e 72nd st attention: michael cross, m.d. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. Co. (294 AD2d 268, 272 [1st Dept 2002], affd 99 NY2d 639 [2003]). Specialties. 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. We are concerned that the respect for court orders and statutory mandates and the authoritative voice of the Court of Appeals are undermined each time an untimely motion is considered simply by labeling it a "cross motion" notwithstanding the absence of a reasonable explanation for its untimeliness. 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. Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. Sinai. Co., 89 NY2d 425, 429 [1996]). The Mt. Plaintiff subsequently underwent the subject procedure at nonparty Mt. Cross M.D - Orthopaedic Surgeon | New York NY 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. Dr. Michael B. 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. American Academy of Orthopaedic Surgeons He received his medical degree from University of Cincinnati College of Medicine and has been in practice for more than 20 years. Plaintiff continued to complain of cervical and lumbar discomfort and worsening of the pre-existing weakness in his right upper extremity. Saint Elizabeth Edgewood Hospital 1 Medical Village Dr Edgewood, KY 41017. Chronic noncompliance with deadlines breeds disrespect for the dictates of the Civil Practice Law and Rules and a culture in which cases can linger for years without resolution. Thus, his opinion is an ambiguous statement of causation, amounting to bare conjecture, which is insufficient to defeat a motion for summary judgment (see Foster-Sturrup v Long, 95 AD3d 726, 728-729 [1st Dept 2012]; Callistro v Bebbington, 94 AD3d 408, 410-411 [1st Dept 2012], affd 20 NY3d 945 [2012]). If you need help finding an appropriate doctor who takes your insurance, contact our HSSConnect at 877.606.1555. HSS Florida is a joint venture with Tenet Healthcare. 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. It wrote, In July, 2005, plaintiff saw orthopaedic surgeon Dr. Andrew Hecht of Mt. As this Court recently noted in Williams v New York City Tr. Granted, the HSS motion is not a cross motion, as denominated, and as such it is untimely (CPLR 2215). Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. [Habiterra Assocs. Dr. Cross is board-certified with several association memberships, including the American Academy of Orthopaedic Surgeons, the New York State Society of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, the Orthopaedic Research Society, and the Musculoskeletal Infection Society. 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 problem in the case at bar is that HSS's motion, in addition to being untimely, is not a true cross motion. 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. "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. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. 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. Michael Cross is a provider established in Indianapolis, Indiana and his medical specialization is Orthopaedic Surgery with more than 17 years of experience. Sinai. 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. Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. Cross is an orthopedist in Lafayette, Indiana. He currently practices at Hospital for Special Surgery and is affiliated with Hospital For Special Surgery. "[FN4] There are sufficient discrepancies in the record and in the experts' opinions that raise questions of fact regarding HSS's course of treatment beginning in 2004, if not earlier. Thus, plaintiff failed to rebut HJD's prima facie entitlement to summary judgment. Financial Disclosures. Featured Providers Near You Dr. Brian Anthony Cole, MD While courts have deemed this mislabeling a "technical" defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 AD3d 403, 404 [2d Dept 2004]), in this case the nature of nonmovant plaintiff's opposition is that there was prejudice because to the extent the court deems HSS's motion a cross motion, the Brill rule is ignored. Find expert care and book online. Kershaw v Hospital for Special 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. Our focus is the rehabilitation of lives, delivered through evidenced-based therapy, with . 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). 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.". Diseases & Conditions Procedures & Tests Symptoms & Signs. 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. [*17]. 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. He accepts multiple insurance plans, including Medicare. Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J. 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. Frelinghuysen testified that, in or about December 2004, after he reviewed plaintiff's film with Dr. Frederico Girardi, another HSS orthopaedic surgeon, he decided that surgery was not an option for treating plaintiff because it would expose plaintiff to myriad risks, and not improve his condition. 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. DOWNLOADABLE RESOURCE: THE ULTIMATE GUIDE TO TOTAL KNEE REPLACEMENT, DOWNLOADABLE RESOURCE: THE ULTIMATE GUIDE TO TOTAL HIP REPLACEMENT, Russell Warren Basic Science Research Award But most importantly, the dissent's approach is in derogation of CPLR 3212(a). 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. Menu. The doctor also noted that plaintiff's "only option" might be a future shoulder arthrodesis "to allow him to have a more functional lifestyle." 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. 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." Plaintiff undertook these programs through HJD's clinic, and was treated continuously until September of 2005. 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." You're all set! The surgery consisted of a decompressive laminoplasty at C3-C7, bone graft reconstruction at C3-C6, and halo vest application. 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). Sign up for our free summaries and get the latest delivered directly to you. 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]). 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. Ins. RX Drugs & Medications Vitamins & Supplements. 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. Hospital for Special Surgery/Cornell Medical Center Residency, Orthopaedic Surgery, 2007 - 2012. 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. I even liked the food I compared it to high-end diner fare). Michael B. We are in agreement that this action was properly dismissed as against HJD; however, a procedural bar is perceived by the majority to prevent this Court from summarily disposing of the action as against HSS. 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. Opinion by Feinman, J. New York State Society of Orthopaedic Surgeons This opinion is uncorrected and subject to revision before publication in the Official Reports. Find a Doctor: By Name, Specialty, Location & Insurance Find a Doctor At HSS, the world's best musculoskeletal specialists work together to provide the best care for you. The motion court granted defendant HJD's motion for summary judgment and denied HSS's motion for the same relief. Appellate Division, First Department Education VANDERBILT UNIV SCH OF MED, Medical School 2006 Health & Living. FIND A DOCTOR. In addition, the motion court correctly dismissed the second cause of action alleging lack of informed consent as plaintiff's papers did not address this claim. 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. 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. Dr. Michael Cross, MD works in New York, NY as an Orthopedic Surgery Specialist and has 16 years experience. A cross motion offers several advantages to the movant. Accordingly, the cross motion was properly denied, regardless of its merits. 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. Peter commented in his entry: I had an amazing experience with Dr. Cross and his team at the Hospital for Special Surgery. You can explore additional available newsletters here. Ctr., 123 AD2d 843 [2d Dept 1986]). Required fields are marked *. 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. 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.
dr michael cross leaving hss