Practice point: The Appellate Division affirmed the Supreme Court's determination that the moving defendants failed
to make a prima facie showing of their entitlement to judgment as a
matter of law. The defendants' medical
experts did not examine the plaintiff's decedent but relied on medical reports and medical records that were not annexed to the
motion. Although the defendants contend that they provided the
Supreme Court with a CD-R containing the medical records relied upon by
their experts, there is no evidence that the CD-R provided to the court
properly contained the certified medical records, or was even readable
by the court, pursuant to CPLR 2214[c]. Moreover, even if a readable CD-R were submitted on an earlier motion, the court is not be compelled, absent a rule
providing otherwise, to locate previously submitted documents in the
electronic record in considering subsequent motions.
Student note: A physician moving for summary judgment dismissing a malpractice complaint must establish, prima facie, either that there was
no departure from accept standards of practice, or that any alleged departure was not a proximate cause of
the plaintiff's injuries. The burden shifts to the plaintiff to demonstrate the existence
of a triable issue of fact only upon the defendant's meeting
the initial burden, and only as to the elements on which the
defendant met the prima facie burden.
Case: Garrison v. Quirk, NY Slip Op 05947 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: Time limits on renewal of a judgment lien.
