From Casetext: Smarter Legal Research

Feliciano v. New York City Health

Appellate Division of the Supreme Court of New York, First Department
May 19, 2009
62 A.D.3d 537 (N.Y. App. Div. 2009)

Opinion

No. 600.

May 19, 2009.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered April 11, 2008, which, in this medical malpractice action, inter alia, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Ronemus Vilensky, New York (Arlene E. Costanzo Ilg of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Cheryl Payer of counsel), for respondent.

Before: Tom, J.P., Friedman, Catterson, Moskowitz and Renwick, JJ.


The motion court properly determined that in opposition to defendants' prima facie showing that they had not departed from good and accepted medical standards in their care and treatment of plaintiff's wrist injury, plaintiff did not offer any evidence to raise a triable question of fact as to defendants' possible negligence or the lack of informed consent. Although plaintiff contends that the supplemental affirmation of defendants' expert physician, submitted in reply to plaintiff's opposition, improperly introduced a new argument in support of summary judgment dismissal, the reply affirmation was appropriate since "defendants' arguments could not have been submitted at an earlier juncture because of the indefiniteness of plaintiff's initial pleading" ( Held v Kaufman, 91 NY2d 425, 430; see also Home Ins. Co. v Leprino Foods Co., 7 AD3d 471). Indeed, not only did plaintiff's expert raise a new theory of medical malpractice in the opposing affirmation, but did so in disregard of clear medical evidence that plaintiff did not suffer from that condition ( see Moore v New York Med. Group, PC., 44 AD3d 393, 395-396, lv dismissed 10 NY3d 740).


Summaries of

Feliciano v. New York City Health

Appellate Division of the Supreme Court of New York, First Department
May 19, 2009
62 A.D.3d 537 (N.Y. App. Div. 2009)
Case details for

Feliciano v. New York City Health

Case Details

Full title:JOSE FELICIANO, Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORP. et…

Court:Appellate Division of the Supreme Court of New York, First Department

Date published: May 19, 2009

Citations

62 A.D.3d 537 (N.Y. App. Div. 2009)
2009 N.Y. Slip Op. 3947
879 N.Y.S.2d 415

Citing Cases

Hoffman v. Taubel

The burden never shifted to plaintiffs to establish that material issues of fact existed, because defendants’…

Collazo v. Gulmatico

The Court notes that new arguments and evidence raised in reply are generally improper in a summary judgment…