MedicineNet. Find Providers by Condition. This opinion is uncorrected and subject to revision before publication in the Official Reports. After surgery, he was pain-free but did not recover a full range of motion in his upper left arm. As to HSS, the court clearly held that because the cross motion was filed impermissibly [*5]late with no reason offered for the lateness, it should be denied. Find expert care and book online. ), entered July 16, 2012, which, insofar as appealed from as limited by the briefs, granted the summary judgment motion of defendants Hospital for Special Surgery, Peter Frelinghuysen, and Federico Pablo Girardi (collectively HSS) only to the extent of dismissing plaintiff's claim of lack of informed consent, and otherwise denied the motion, and from the judgment of the same court and Justice, entered August 20, 2012, dismissing the complaint as against defendant New York University Medical Center Hospital for Joint Diseases. Brill reiterates Kihl's statement that, " [i]f the credibility of court orders and the integrity of our judicial system are to be maintained, a litigant cannot ignore court orders with impunity'" (2 NY3d at 652-653, quoting Kihl at 123). Because of the particular procedural posture of this matter, the order directing that it proceed to trial is ultimately futile, but application of the majority's rationale will unnecessarily burden both courts and litigants. Cross is a radiation oncologist. From the time of my first phone call to my most recent post-op consultation I knew I was in the hands of a pre-eminent surgical team. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. Moreover, while there is mention of a surgical option in the 2004 hospital records, the evidence does not show that evaluation of the attendant risks and benefits was undertaken until October 2004, culminating in the December 2004 decision that the associated risk was too great. The clinic notes also indicate that plaintiff told the examining physician that he had recently secured a job and was not interested "whatsoever" in immediate surgery; plaintiff disputes this and says he was not working at that time. FEINMAN, J. Michael M. Alexiades, MD Hip and Knee Replacement HSS Main Campus, Uniondale Call for an appointment 212.774.7557 Michael P. Ast, MD Hip and Knee Replacement HSS Main Campus, Paramus Call for an appointment 201.599.8056 Jason L. Blevins, MD Hip and Knee Replacement HSS Main Campus, Westchester Call for an appointment 212.606.1248 Here, the modestly late motion submitted by HSS sought relief on the same issues raised in HJD's timely motion. They work like a well-oiled machine. While defendants have not raised the question of whether the complaint is actionable, the issue should nevertheless be decided preliminarily. . Footnote 2: Supreme Court's extension of the time to file dispositive motions had given the parties a total of 82 days after the filing of the note of issue on August 24, 2011. The best working with the best. The dissent's approach of judging a motion's merits without consideration of why it was untimely, can only lead to uncertainty and additional litigation as motions clearly barred by Brill become arguably permissible because one of the litigants perceives the motion to have merit and perceives no prejudice to the other side. OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT. 535 E 70th St . Physical therapy, pain management and treatment in HJD's neurology, hand and shoulder clinics were recommended. It contends that in the interest of judicial economy we should not depart from "prior authority" that affords the court discretion to entertain a "marginally late filing" when there is merit to the application and no prejudice has been demonstrated, citing Burns v Gonzalez (307 AD2d 863 [1st Dept 2003]), and Garrison v City of New York (300 AD2d 14 [1st Dept 2002], lv denied 99 NY2d 510 [2003]). As the Court of Appeals has admonished, " No opinion is an authority beyond the point actually decided, and no judge can write freely if every sentence is to be taken as a rule of law separate from its association'" (Matter of Staber v Fidler, 65 NY2d 529, 535 [1985], quoting Dougherty v Equitable Life Assur. Cross appeals from the order of the Supreme Court, New York County (Alice Schlesinger, J. Unlike Brill, the circumstances presented by the instant matter do not furnish a compelling reason to depart from prior authority affording a court discretion to entertain a marginally late filing where the party's application has merit and no prejudice has been demonstrated by an adversary (see e.g. Our decision is not one on the merits of plaintiff's claim, and it is therefore premature to bemoan that we have opened a Pandora's box for surgeons. at 652). [*7]. If the issue had been compression, surgery would have been performed to prevent further progression, but due to the degeneration of the spinal cord, decompressive laminectomies would have done little or nothing to address plaintiff's upper extremity issues. Thereafter, the motion court issued an order which provided that "[t]he time for the various defendants to move for summary judgment is extended through November 14, 2011." Michael B. My stay at the Hotel for Special Surgery was flawless. Find All Providers . Co. (294 AD2d 268, 272 [1st Dept 2002], affd 99 NY2d 639 [2003]). By notice of cross motion dated January 10, 2012, HSS moved for summary judgment and dismissal, relying on HJD's expert's affidavit and that of defendant Girardi. Sinai, in October 2006, plaintiff returned to HJD's neurology clinic, reporting a lack of improvement in upper extremity strength, and some pain and numbness on the right arm and hand. There is a shorter minimum notice requirement, three or seven days, as compared with the minimum eight-day notice requirement in CPLR 2214(b). Overall rating 4.92 Wait time 3.69 Bedside manner 4.85 Your trust is our top concern, so providers can't pay to alter or remove reviews. Dr. Michael B. Cross's office location Michael B. But to reject the motion on that ground, under the facts herein, ignores the adverse consequences of imposing an overly restrictive rule, specifically, consequences that are especially adverse to the courts. However, for reasons bereft of any sound basis in law or judicial policy, it refuses, primarily on procedural grounds, to apply the same reasoning to dismiss the complaint as against HSS. McAloon & Friedman, New York (Gina Bernardi Di Folco of counsel), for respondent. There is no suggestion that the narrow interpretation imposed upon the term "good cause" in Brill is meant to apply in circumstances, such as here, where a timely motion is followed by a corresponding motion that is not. This is also reflected in their individual motion papers. Peltz & Walker, New York (Bhalinder L. Rikhye of counsel), for appellants-respondents. ), entered July 16, 2012, which, insofar as appealed from as limited by the briefs, granted the summary judgment motion of defendants Hospital for Special Surgery, Peter Frelinghuysen, and Federico Pablo Girardi (collectively HSS) only to the extent of by Peter Gordon. Cross M.D - Orthopaedic Surgeon - Home | Facebook However, the solution, the Court of Appeals explains, is not for the courts to overlook or bend CPLR 3212(a) to fit the particular circumstances, but for "practitioners [to] move for summary judgment within the prescribed time period or offer a legitimate reason for the delay" (id.). An overly expansive application of Brill invites unintended consequences following from the Legislature's 1996 amendment of CPLR 3212(a). Request an Appointment 317.275.6191 (Fax: 317.884.5360) Meet Dr. Michael Cross Dr. Cross earned his bachelor's degree from Washington University in St. Louis in 2002. Accordingly, the order should be modified to the extent of granting defendant HSS's motion for summary judgment. Cross, MD. He accepts multiple insurance plans, including Medicare. At his next visit on November 12, 2004, a different doctor indicated in the clinic notes that Frelinghuysen and Girardi had recommended "what sounds like a two-level anterior cervical decompression and fusion," and that plaintiff would follow up in one week "to discuss surgery" [*3]with Frelinghuysen [FN1]. James, in turn, relied on Rosa v R.H. Macy Co. (272 AD2d 87 [1st Dept 2000]), where Macy moved for summary judgment and two other defendants untimely cross-moved against it for indemnity; the motion and another timely cross motion were still pending, and we held that the untimely cross motions should have been considered. Cross, MD. Cross, MD . In opposition, Murphy's opinions were "somewhat conclusory." Cross appeals from the order of the Supreme Court, If you know this doctor and/or would like to share more about his good work please feel free to add a comment below. Furthermore, those lawyers who engage their best efforts to comply with practice rules are also effectively penalized because they must somehow explain to their clients why they cannot secure timely responses from recalcitrant adversaries, which leads to the erosion of their attorney-client relationships as well" (16 NY3d at 81). Dr. Michael A. fact, barring summary resolution. About eight years later, in March 2002, plaintiff returned to HSS complaining of lower back pain and severe left leg pain; he was treated with a course of steroid injections. Once this burden is met, the burden shifts to the opposing party to submit proof in admissible form sufficient to create a question of fact requiring a trial (Kosson v Algaze, 84 NY2d 1019 [1995]). This statement concedes that HSS properly conducted further studies; that the results failed to afford any further diagnostic insight that was not predictable, and neither the tests themselves nor the time expended in conducting them are rendered improper as a result of that outcome. Thus, the primary objective of Brill to discourage dilatory conduct is not implicated (see Fofana v 41 W. 34th St., LLC, 71 AD3d 445, 448 [1st Dept 2010], lv denied 14 NY3d 713 [2010]). While courts have deemed this mislabeling a "technical" defect which will be disregarded, particularly where the nonmovant does not object and it results in no prejudice to the nonmoving party (see Sheehan v Marshall, 9 AD3d 403, 404 [2d Dept 2004]), in this case the nature of nonmovant plaintiff's opposition is that there was prejudice because to the extent the court deems HSS's motion a cross motion, the Brill rule is ignored. Opinion by Feinman, J. Jewish-Hillside Med. Dr. Cross specializes in adult reconstructive surgery of the hip and knee, including primary and revision joint replacements. Dr. Michael Cross, MD is a orthopedic surgery specialist in New York, NY. The result will be judicial economy, as well as lawyerly economy. 523 e 72nd st attention: michael cross, m.d. On October 1, 2004, plaintiff first met with defendants Peter Frelinghuysen, M.D. Plaintiff commenced this action against HSS and HJD claiming, in essence, that defendant hospitals were negligent in declining to timely perform the surgery he sought, particularly, that their delay caused him to sustain injury that otherwise might have been avoided. Copyright 2023 OrthoIndy. Drugs & Supplements. Cross M.D - Orthopaedic Surgeon, New York, New York. In short, the HSS "cross motion" was more than a late "me too" motion and should not have been considered on its merits. ], 5 NY3d 514 [2005], citing Brill [dismissal after ongoing failure to comply with discovery orders]; Miceli v State Farm Mut. Dr. Frelinghuysen testified that, in or about December 2004, after he reviewed plaintiff's film with Dr. Frederico Girardi, another HSS orthopaedic surgeon, he decided that surgery was not an option for treating plaintiff because it would expose plaintiff to myriad risks, and not improve his condition. Co., 89 NY2d 425, 429 [1996]). He further opined that had the surgery been performed in 2003, plaintiff's "final outcome would have been substantially improved and he would not have sustained such a severe degree of weakness and loss of function of his right upper extremity." Judgment, same court and Justice, entered August 20, 2012, affirmed, without costs. Significantly, Brill deals with the straightforward situation in which an initial summary judgment motion is filed well after a matter has been certified as ready for trial "in violation of legislative mandate" (id. New York Presbyterian Hospital Internship, Preliminary Year, 2006 . Dr. Olsewski opined that based upon plaintiff's medical, diagnostic and surgical history, further cervical surgery would have been an "unjustifiable and extraordinarily risky and aggressive treatment option." Sinai. It is a distorted analysis of my position. Can't say enough about how friendly the staff was at this facility. The progress notes from June 25, 2005 indicate, in part, that he had "marked stenosis throughout spine," and "marked atrophy at both shoulder girdles." Brill draws a bright line based on the two elements of CPLR 3212(a): the statutorily imposed or court-imposed deadlines for filing summary judgment motions, and the showing of good cause by a late movant in order for its motion to be considered. In sum, an outdated, pre-Brill interpretation of the amended CPLR 3212(a) continued to hold sway in Lapin. The majority concludes that plaintiff failed to demonstrate any injury sustained as a result of the delay in surgery and upholds the dismissal of the complaint as against HJD on this ground a result in which I wholly concur. Cross is an orthopedist in Lafayette, Indiana. Dr. Cross is board-certified with several association memberships, including the American Academy of Orthopaedic Surgeons, the New York State Society of Orthopaedic Surgeons, the American Association of Hip and Knee Surgeons, the Orthopaedic Research Society, and the Musculoskeletal Infection Society. Dr. Ast is affiliated with Hospital For Special Surgery and Hospital for Special Surgery. Was seen ahead of scheduled appointment time. The best that surgery could do was stop the myelopathy, but there was risk of permanent paralysis or death, "well beyond the standard for such risks for cervical spine cases." Parker v LIJMC-Satellite Dialysis Facility, 92 AD3d 740, 741-742 [2d Dept 2012] [failure to receive significant outstanding discovery before the deadline for making motion for summary judgment provides good cause for allowing a late-filed motion for summary judgment]; see also Kase v H.E.E. Dr. Machler reported that plaintiff had mildly positive reactions to molybdenum, tobramycin, benzoic acid, and formaldehyde. Plaintiff's MRI was reviewed and it was determined that surgery was not indicated. DEPUTY CLERK Ten months after the surgery at Mt. Dr. Michael M. Alexiades is an orthopedist in Lake Success, New York and is affiliated with multiple hospitals in the area, including Hospital for Special Surgery and New York-Presbyterian. Lapin is one in a line of cases holding that an untimely cross motion may be considered on its merits when it and the timely motion address essentially the same issues. In Frelinghuysen's words, he and Girardi decided that surgery "would not help." In Brill the Court of Appeals indicated that late-filed summary judgment motions are "another example of sloppy practice threatening our judicial system" (2 NY3d at 652, emphasis added), and pointed to its earlier decision, Kihl v Pfeffer (94 NY2d 118 [1999]), which affirmed dismissal of the complaint because the plaintiff failed to respond to a court order within the court-ordered time frame. I simply note that Brill is inapposite to the facts of this matter and that both the decision and the statute it construes apply only to a party whose motion has the effect of staying and delaying trial. at 236, citing Andrea, Miceli, Brill, and Kihl). Both seek dismissal of the complaint on the identical ground that it was not a departure from good and accepted medical practice to forego surgery in favor of a conservative treatment plan, i.e., based on the severity of plaintiff's existing spinal disease and the low prospect of improving his condition, the decision not to subject plaintiff to the risk of quadriplegia or death was a sound medical decision. Since surgery carried serious risks and would likely not benefit the patient, conservative management with physical therapy and pain management would be more appropriate. HSS admitted that its motion seeking summary judgment and dismissal of the complaint as against it was filed nearly two months after the court-imposed deadline for making dispositive motions,[FN2] but argued that it should be considered because it sought relief on the same issues raised in codefendant HJD's timely motion. You already receive all suggested Justia Opinion Summary Newsletters. HJD timely moved for summary judgment on November 11, 2011. In particular, the records suggest that HSS believed surgery was appropriate and helpful in as early as 2003, surgery is repeatedly mentioned in the records of 2004, and plaintiff believed that surgery had been scheduled. ", As to the delay causing any injury, the doctor stated that there was no identifiable injury caused by any alleged delay during the four month period between when plaintiff was first seen at HJD and when he first went to Mt. In October, 2006, plaintiff returned to HJD again complaining of continued lack of strength in upper extremity and numbness and pain in the right arm and hand. Mobile Navigation Menu. Dr. Michael P. Ast, MD is a health care provider primarily located in Paramus, NJ, with another office in New York, NY. By making a cross motion, the party saves an extra day in court, and quite possibly the time and trouble of amassing fresh proof, if it happens that all or part of the evidentiary foundation on which the cross motion is based has already been produced for consideration (Patrick M. Connors, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C2215:1, 2215:2). To the extent that good cause is even material under these circumstances, it is the sheer impossibility of preparing a dispositive motion during the remaining time established by the court for its submission. [Habiterra Assocs. Find doctor Michael Brian Cross Orthopedic Surgeon physician in White Plains, NY. New York, NY, 10021. Strict and rigid application of Brill is even less understandable given the similarity of the grounds advanced by the respective hospitals in support of their summary judgment motions and the ground upon which disposition rests. Plaintiff cites no precedent for imposing liability under these circumstances, and no comparable New York case has been located. Sinai. However, disregarding the untimeliness of HSS's motion, the court held that issues of fact precluded HSS from being granted summary judgment. The answer is yes. On April 11, 2003, an MRI revealed a narrowing of the spinal canal and the neural foramen with disc protrusions. New York State Society of Orthopaedic Surgeons Plaintiff testified that on his third visit with Frelinghuysen in December 2004, the doctor told him that they could not do the surgery, but did not give him "a reason that made any sense." Appellate Division, First Department Jorge O. Galante, MD Fellow Research Award He is board certified in Orthopedic Surgery and graduated from VANDERBILT UNIV SCH. dr michael cross leaving hss. Specialties: We provide physical, occupational, and speech therapy primarily in an in-home setting for the older adult community, and with recent addition of services at our skilled nursing facilities, outpatient and pediatric settings. HSS Orthopedics Joins Forces With Stamford Health. The courts will no longer have to address the kinds of questions we address here. 2013 NY Slip Op 08548 Plaintiff was a patient a much longer time at HSS than at HJD, surgery was positively discussed by the HSS defendants, and thus there are factual differences between the two defendants' treatments. Mon 7:00 am - 6:00 pm. Maysville Radiology Group 991 Medical Park Dr Maysville, KY 41056. Plaintiff had a history of severe cervical disc disease going back to 1989. Electronic tests revealed that plaintiff's cervical condition was significantly the same as in 2005 which supported Dr. Hecht's post surgical findings. Health insurers that provide access to Hospital for Special Surgery (click the insurance company name for more details) Aetna Affinity by Molina Healthcare Blue Cross Blue Shield - Empire Blue Cross Blue Shield - Horizon We are in agreement that this action was properly dismissed as against HJD; however, a procedural bar is perceived by the majority to prevent this Court from summarily disposing of the action as against HSS. [*17]. Health A-Z. Health & Living. The notes also indicate that this doctor explained to plaintiff that the reason to do surgery would be to prevent worsening of his symptoms. Its motion papers included an affidavit of a medical expert who discussed plaintiff's medical history as seen in the records. To the extent HSS's motion was directed at the complaint, as opposed to any cross claims by HJD, and was not made returnable the same day as the original motion, it was not a cross motion as defined in CPLR 2215. The motion by HSS was submitted shortly after the end of the holiday season on January 10, 2012, and the respective motions were finally decided by the motion court on July 16, 2012, over seven months later. Plaintiff opposed defendants' motions for summary judgment, although he did not address the claim of lack of informed consent. Your email address will not be published. The dissent would seemingly limit the reach of Brill to those actions where a party files a motion for summary judgment long after the deadline for dispositive motions and the matter is on the trial calendar. The court noted that Dr. Girardi at HSS "explained clearly that he believed that the cord was so damaged that the surgery would not have improved anything" and Dr. Hecht, who performed the surgery, acknowledged that plaintiff did not have any objective improvement. by Peter Gordon. He graduated medical school from Vanderbilt University as a member of the Alpha Omega Alpha Medical Honor Society. Footnote 1: To reiterate, it was the timely motion by HJD that delayed trial, not the motion submitted by HSS while HJD's motion was pending, a situation addressed neither by the statute nor Brill. Plaintiff continued to complain of cervical and lumbar discomfort and worsening of the pre-existing weakness in his right upper extremity. Required fields are marked *. Plaintiff returned to HSS in June 2004 complaining of increasing right shoulder dysfunction and neck pain, and decreasing balance. and Federico Pablo Girardi, M.D., both orthopedic surgeons at HSS. "[FN4] There are sufficient discrepancies in the record and in the experts' opinions that raise questions of fact regarding HSS's course of treatment beginning in 2004, if not earlier. The majority sustained the action as against HSS as a result of the hospital's submission of its summary judgment motion after the date set by the trial court pursuant to CPLR 3212(a). Brill holds that to rein in these late motions, brought as late as shortly before trial, CPLR 3212(a) requires that motions for summary judgment must be brought within 120 days of the filing of the note of issue or the time established by the court; where a motion is untimely, the movant must show good cause for the delay, otherwise the late motion will not be addressed (see Isolabella v Sapir, 96 AD3d 427, 427 [1st Dept 2012]). The course adopted by plaintiff of locating a medical team possessing the requisite skills at a hospital equipped with the appropriate facilities represents a seemingly optimal outcome which, as a matter of policy, should not be compromised by the threat of litigation. Type a specific doctor's name, body part, procedure or condition, then choose from the options. He then attended medical school at Vanderbilt University, graduating in 2006. We therefore affirm the branch of the motion court's order which denied HSS summary judgment as untimely made without consideration of its merits. Brill v City of New York (2 NY3d 648 [2004]) addressed the "recurring scenario" of litigants filing late summary judgment motions, in effect "ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice" (2 NY3d at 650). An MRI of his cervical spine taken the same day found "severe central canal and severe neural foraminal stenosis," resulting in "severe myelomalacia of the spinal cord" from C3 to mid-C5 level. Peter commented in his entry: I had an amazing experience with Dr. Cross and his team at the Hospital for Special Surgery. Plaintiff was referred for pain management and to HJD's neurology and hand clinics, with the notation that "no further surgery for the cervical spine [was] indicated.". The HSS "cross motion," which runs from page 842 to page 1002 of the record on appeal, is comprised of many items not contained in the HJD motion papers, not the least of which is additional medical records not submitted by HJD. Diet & Weight Management Corp., 91 NY2d 291, 296 [1998]; Bielat v Montrose, 272 AD2d 251, 251 [1st Dept 2000]). Unfairness to one party is not remedied by applying the statute to the detriment of another.[FN1]. Some decisions also reason that because CPLR 3212(b) gives the court the power to search the record and grant summary judgment to any party without the necessity of a cross motion, the court may address an untimely cross motion at least as to the causes of action or issues that are the subject of the timely motion (see Filannino, 34 AD3d at 281, citing Dunham v Hilco Constr. The practice sought to be deterred in Brill is delay occasioned by the submission of a summary judgment motion on the eve of trial, thereby staying proceedings to the prejudice of litigants who have applied their resources in preparation for trial of the issues (Brill, 2 NY3d at 651). Accordingly, the cross motion was properly denied, regardless of its merits. Nonmovants will suffer no prejudice. Tue 7:00 am . According to plaintiff, he understood that surgery would be performed in late December, and he began obtaining the necessary medical clearances. Tom, J.P., Acosta, Saxe, Freedman, Feinman, JJ. Co., 3 NY3d 725 [2004], citing Brill [denying untimely filed summary judgment motion because although the plaintiff argued she had meritorious case, no reasonable excuse was provided as to the motion's late filing]; see also Casas v Consolidated Edison Co. of N.Y., Inc., 105 AD3d 471 [1st Dept 2013] [upholding order striking answer where the defendant offered no reasonable excuse for its failure to comply with discovery order and provide a meritorious defense]). The Best of the Best in Orthopedic Surgery. Specialties. 35 Mayflower Avenue Unit B Stamford, CT 06906 Phone +1 (212) 987-OSET (6738) CONTACT US . HJD met its burden of showing prima facie entitlement to summary judgment, proffering evidence that plaintiff was not caused to suffer any injury between February 2005 when HJD found that surgery was not indicated, and April 2005 when he first consulted with Mt. Dr. Michael B. The nurses and assistants were wonderful and were focused on managing my (intense) pain. OrthoIndy Hospital is physician-owned and operated. He was no longer working and was receiving social security disability benefits. In February 2005, plaintiff sought treatment at defendant New York University Medical Center Hospital for Joint Diseases (HJD). Acknowledgment Hospital for Special Surgery gratefully thanks the Autumn Benefit Committee for ongoing support and major funding for . 212.606.1823 212.734.3833 (fax) www.hss.edu alumni@hss.edu. According to the affidavit, Murphy reviewed the medical records and opined that surgery for plaintiff was "indicated as early as June 2003 when the diagnosis of cervical spondylitic myelopathy was made," and from that time until December 2005 when surgery was performed, plaintiff's neurological condition deteriorated. This surgeon was submitted to G.O.S. Dr. Murphy stated that the delays were a departure from the standards of good medical practice. ", In February 2005, plaintiff began treatment at defendant New York University Medical Center Hospital for Joint Disease (HJD). The court then went on to comment in dicta that if its merits were examined, summary dismissal should be denied as there are substantial questions of It is up to the litigant to show the court why the rule should be flexible in the particular circumstances, or, in the words of the statute, that there is "good cause shown" for the delay. Co., LLC, 48 AD3d 337, 337 [1st Dept 2008]; Alexander v Gordon, 95 AD3d 1245, 1246-1247 [2d Dept 2012]; Grande v Peteroy, 39 AD3d 590, 591-592 [2d Dept 2007]). The Mt. They work like a well-oiled machine. HSS Doctors: Book an Appointment Online Today Book online with our top ranked surgeons, physicians or specialists in orthopedics, rheumatology, or sports medicine. Allowing movants to file untimely, mislabeled "cross motions" without good cause shown for the delay, affords them an unfair and improper advantage. with the kind of [*12]degeneration of the spinal cord [plaintiff] had, risk[ed] creating symptoms in the hands or feet. Dr. Petrizzo testified that the overwhelming majority of patients with cervical myelopathy do not regain function after decompression surgery. Sinai Hospital in December 2005, with no objective sign of improvement in physical function after over 10 months, according to his surgeon's report and tests taken at HJD's neurology clinic in October, 2006. In addition, he was voted by the faculty as the Distinguished Housestaff Award winner at NewYork-Presbyterian Hospital/Weill Cornell Medical Center. When deciding a motion for summary judgment, the court's function is issue finding rather than issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).
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