The Appellate Division reversed, and reinstated the complaint in this action where plaintiff, as administrator of the estate commenced a medical malpractice suit against, among others, defendant-physician. Defendant's motion for summary judgment was denied. The action was assigned to a different judge, and set for trial. After jury selection, the complaint was dismissed insofar as asserted against other defendants, and, in light of the dismissal as to those defendants, the Supreme Court declared a mistrial, with jury selection to begin anew. After a second jury was selected, the court, sua sponte, directed a hearing, denominated as a Frye hearingat which the plaintiff's medical expert, was to testify in order to determine whether his opinion rendered in this case as to defendant was sufficiently reliable. Following the hearing, the court directed dismissal of the complaint insofar as asserted against defendant.
Practice point: A Frye hearing is meant to determine whether an expert's opinion is based on principles that are sufficiently established to have gained general acceptance as reliable. Here, though, based on the court's questions and statements, the Appellate Division determined that the hearing's purpose was to revisit the determination made in the order denying defendant's motion for summary judgment insofar as asserted against her. In doing so, the court violated the doctrine of law of the case by disregarding the prior order, issued by a justice of coordinate jurisdiction, concluded that there were triable issues of fact as to whether defendant departed from accepted medical standards of care and whether such departures were a proximate cause of the decedent's injuries.
In addition, a court's power to dismiss a complaint, sua sponte, is to be used sparingly and only when extraordinary circumstances exist to warrant dismissal. Here, there were no extraordinary circumstances warranting the sua sponte dismissal of the complaint insofar as asserted against defendant.
Case in point: Aguilar v. Feygin, NY Slip 04811 (2d Dep't June 14, 2017)
Here is the deision.
Tomorrow's issue: Hearsay on a summary judgment motion.
