Summary Judgment Granted On Appeal

The Appellate Division, First Department overturned the lower court’s decision denying summary judgment dismissal on behalf of a prominent hospital in Bronx County.  The case involved an alleged failure to timely perform a Cesarean section, resulting in fetal demise.  Eric Gingold and Cindy Young drafted the motion for summary judgment.  Daryl Paxson drafted the appeal papers and Daniel Ratner handled the oral argument at the Appellate Division.


In the underlying motion papers, we argued the plaintiff presented to the defendant-hospital on two pertinent occasions, and plaintiff was appropriately assessed and treated by the defendants–an obstetrician and the hospital staff–on both occasions.  We further argued the fetal demise occurred between plaintiff’s hospital presentations, but the defendants did not proximately cause the infant’s stillbirth.


Justice Joseph Capella dismissed the action against the defendant obstetrician in its entirety, but held issues of fact existed with respect to the treatment rendered by the hospital staff.  Further, Justice Capella found plaintiff’s expert’s Affirmation sufficient to defeat summary judgment on the issue of proximate cause.


On appeal, we successfully argued that plaintiff’s expert’s theory was novel and should not be considered.  Further, we argued that plaintiff’s expert failed to properly address the opinions rendered by the defense experts and otherwise rendered opinions which were conclusory.  The First Department agreed, and the action was dismissed in its entirety.