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Clermont-Lundy v. Zimbalist10/5/2005
Bisordi further states that "if [Dr. Zimbalist] would have properly diagnosed [Mr. Lundy], it was [Dr. Zimbalist's] duty to provide chemotherapy and radiation therapy or to refer him to a specialist to try to control [Mr. Lundy's] disease." Accordingly, it is Dr. Bisordi's opinion that Dr. Zimbalist's "failure of diagnosing metastatic liver cancer, within a reasonable degree of medical certainty, deviated from good and acceptable medical standards and was the proximate and direct cause of [Mr. Lundy's] death on August 15, 2001."
Given the expert medical testimony proffered, as well as the medical evidence demonstrating the continuous and severe nature of Mr. Lundy's symptoms while he was monitored by Dr. Zimbalist and the existence of two CT scans showing liver lesions, one of which was ordered by Dr. Zimbalist and specifically states that "disease processes such as metastasis cannot be excluded," the court finds that plaintiff has proffered evidence sufficient to raise a triable issues of fact with regard to Dr. Zimbalist's alleged deviation from acceptable medical practices and whether such alleged deviation was causally related to Mr. Lundy's death. Accordingly, Dr. Zimbalist's motion for summary judgment must be denied.
Maimonides' Cross Motion for Summary Judgment
Defendant Maimonides Medical Center (Maimonides) moves for an order, pursuant to CPLR 3212, on the grounds that neither the employees of Maimonides nor Maimonides itself can be held liable for the treatment rendered by Dr. Zimbalist as plaintiff's private attending physician and that, in any event, the care and treatment provided by Maimonides or its employees during Mr. Lundy's admission to the hospital were within accepted standards of hospital practices.
Pursuant to court order, the original time for defendants in this action to file a motion for summary judgment was 60 days from December 10, 2004. A subsequent court order extended the time for filing of summary judgment motions to March 11, 2005. On March 18, 2005, 7 days after the expiration of the court imposed filing deadline, Maimonides served a cross motion for summary judgment. Maimonides claims that on March 17, 2005, it sought leave of the court to file a late motion for summary judgment, which was granted. It explains that its motion was not filed timely because Dr. Zimbalist did not serve his motion for summary judgment until March 10, 2005, and it did not arrive at Maimonides' counsel's office until March 16, 2005. For some reason, the cross motion was rejected by the motion support office and Maimonides re-filed an identical motion on May 10, 2005, now denominated as a motion for summary judgment, as opposed to a cross motion, and said motion is the one presently before the court.
Maimonides' motion must be denied as untimely. In the recent case Brill v City of New York (2 NY3d 648, 652 ), the Court of Appeals held that "'good cause' in CPLR 3212(a) requires a showing of good cause for the delay in making the motion a satisfactory explanation for the untimeliness rather than simply permitting meritorious, non-prejudicial filings, however tardy. [Accordingly,] o excuse at all, or a perfunctory excuse, cannot be 'good cause.'" Such requirement applies whether the moving party is untimely pursuant to either a statutory time frame or one that has been ordered by the court (see Miceli v State Farm Mut. Auto Ins. Co., 3 NY3d 725, 726 ; see also Balcerzak v DNA Contracting, LLC, 2005 NY Slip Op. 25322 ; Buckner v City of New York, 2005 NY Slip Op. 25320 ). "In the absence of a 'good cause' showing, a court has no discretion to entertain even a meritorious, non-prejudicial summary judgment motion" (Hesse v Rockland County Legisla
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