Blog

Med Mal and Procedural caseDecember 28, 2008

This is similar to the cases where a peer doctor fails to review sufficient documentation before arriving at an opinion.

“Lack of Foundation to form an expert opinion”

Luu v Paskowski
2008 NY Slip Op 10135 (2d Dept. 2008)

The pertinent portion of this case is as follows:

“[Plaintiff’s expert] Zola did not refer to any part of the hospital records, and did not state when the blood loss occurred or how it caused the small bowel obstruction and hematoma. Zola made no reference to any of the hospital records in his affidavit, and did not state that he had reviewed the pleadings and depositions. Zola’s affidavit was conclusory and lacked a foundation (see Thompson v Orner, 36 AD3d at 792; Furey v Kraft, 27 AD3d at 418).

Procedural – default viz a vi failure to obtain an adjournment on the record

Diamond v Diamante
2008 NY Slip Op 10117 (2d Dept. 2008)

“plaintiffs and their attorney, nonparty James D. Reddy, appeal from a judgmentwhich, inter alia, upon the denial of the plaintiffs’ application for an adjournment, is in favor of the defendants and against the plaintiff, dismissing the complaint, and against the nonparty James D. Reddy awarding costs and imposing sanctions.”

“Where, as here, the order appealed from was made upon the plaintiffs’ default, “review is limited to matters which were the subject of contest below” (Matter of Constance P. v Avraam G., 27 AD3d 754, 755 [internal quotations marks omitted]; see James v Powell, 19 NY2d 249, 256 n 3; Wexler v Wexler, 34 AD3d 458, 459; Brown v Data Communications, 236 AD2d 499). [*2]Accordingly, in this case, review is limited to the denial of the plaintiffs’ request for an adjournment, on the appeal by the plaintiffs, and the award of costs and imposition of sanctions against nonparty James D. Reddy, on the appeal by the nonparty (see Matter of Paulino v Camacho, 36 AD3d 821, 822; Tun v Aw, 10 AD3d 651, 652).

Turning to the merits, “[t]he granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283; see Matter of Steven B., 6 NY3d 888, 889; Matter of Sicurella v Embro, 31 AD3d 651, lv denied 7 NY3d 717), and its determination will not be disturbed absent an improvident exercise of that discretion (see Davidson v Davidson, 54 AD3d 988). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d at 651), including “the merit or lack of merit of the action, extent of the delay,” the number of adjournments granted, the “lack of intent to deliberately default or abandon the action” and the length of the pendency of the proceeding (Belsky v Lowell, 117 AD2d 575, 576; see Matter of Claburn v Claburn, 128 AD2d 937, 938).”

Leave a Reply