APPEALS

New York State Supreme Court, First Department


Our firm obtained a reversal of a New York Supreme Court’s denial of our motion for summary judgment on behalf of an Ulster County hospital. The plaintiff had presented to the emergency department complaining of severe nausea and vomiting, while on a course of IV Gentamicin. The patient was stabilized and discharged, with instructions to follow up with her primary care physician and her infectious disease specialists for repeat laboratory testing. As part of its motion for summary judgment, our office submitted an affirmation of an emergency medicine physician, who opined the hospital’s care and treatment comported with the standard of accepted emergency department care. The plaintiffs submitted the affirmations of an emergency medicine physician and an infectious disease physician, in opposition to summary judgment. This office argued on reply that the plaintiffs’ experts’ opinions were vague, conclusory, not supported by the medical records, and improperly sought to expand the duty of an emergency medicine physician. The First Department held, unanimously, that plaintiffs’ experts had failed to raise a triable issue of fact warranting a trial.

Result : Reversal of motion court’s decision, with dismissal of all claims against our client.
Defense Attorney : Ellen A. Fischer, Sholes & Miller, PLLC

State of New York Appellate Division, Second Department


The Second Department has affirmed the granting of summary judgment dismissing an action against a Westchester County surgeon. The plaintiff underwent three surgical procedures performed by the defendant due to complaints of abdominal bloating, pain, and difficulty swallowing related to gastroesophageal reflux disease and a hiatal hernia. The Appellate Division held that in opposition to the defendant’s prima facie showing, plaintiff failed to raise a triable issue of fact. The plaintiff’s expert affirmation was inadmissible as the expert was not licensed in New York State. Furthermore, even if it were admissible, the expert’s affirmation was conclusory and failed to address the specific assertions made by the defense expert. The Appellate Division also affirmed the denial of plaintiff’s motion to reargue and dismissed the appeal from the denial of reargument of the motion. Partner Mary Pat Burke, Esq. made the successful motion, while appellate counsel Ellen A. Fischer, Esq. successfully defended the decision on appeal.

Result : Dismissal affirmed on appeal.
Defense Attorney : Defense Counsel for surgeon’s successful summary judgment: Mary Pat Burke, Sholes & Miller. Appellate Counsel for the surgeon: Ellen A. Fischer, Sholes & Miller.