Practice point: The Appellate Division affirmed the order denying summary judgment on the alternate ground
that the motion, made more than fifteen months
after the filing of the note of issue, was untimely, pursuant to CPLR 3212[a]. Defendant's purported excuse for the late motion - that a CD
of an MRI, which had been lost, was found shortly before defendant made
the motion - is inadequate. The parties agreed on the MRI's findings of a
hip fracture, which were documented in other medical records, including
an operative report. While the MRI was relied on by the parties'
experts, it was not necessary for defendant's motion and the case could
have proceeded to trial without that evidence.
Student note: The Appellate Division opined that, on the merits, the motion should have been denied. Defendant's moving papers
failed to respond to a number of specific allegations of negligence
asserted in the bill of particulars, including the central claim
concerning the failure of its nurse to reposition the guardrails on the
decedent's bed so as to prevent a fall.
Case: Gorman v. Montefiore Med. Ctr., NY Slip Op 04093 (1st Dept. 2013).
Here is the decision.
Tomorrow's issue: 90-day demands and notes of issue.
