Appellate Victories

In a case involving an alleged failure to timely diagnose breast cancer, we successfully argued that our client, the patient’s breast surgeon, did not cause the delay in diagnosis and won summary judgment.  Plaintiff subsequently appealed the trial court’s grant of our summary judgment motion. The Appellate Division, First Department affirmed that the trial court properly granted summary judgment to our client. Contrary to plaintiff’s contention, the Appellate Court agreed that the Supreme Court providently exercised its discretion in determining that any alleged departure attributable to our client was not the proximate cause of the plaintiff’s delayed cancer diagnosis. The Appellate Court found that although plaintiff made the follow-up diagnostic appointments prescribed by our client, she cancelled them and did not reschedule them because she lost her health insurance. The Appellate Court agreed with our position that, although aware of the urgency of follow-up tests, and the discovery of a quarter-sized lump in her breast, the plaintiff waited until a year later to seek treatment, a decision that was not attributable to our client. Accordingly, all claims against our physician were dismissed.

In a case involving an alleged failure to diagnose lymphoma, we prevailed in the trial court on summary judgment dismissing all allegations against two of our clients.  The Appellate Division, Second Department subsequently granted our motion which sought to dismiss plaintiff’s appeal on the grounds of failure to timely perfect. In the trial court, plaintiff attempted to submit a second notice of appeal after the expiration of her six-month time period to perfect, asserting that she had the right to do so after we submitted a judgment. We maintained that her time to perfect had automatically expired after the six months and our submission of a judgment to the trial court did not re-start her appeal time. The Appellate Court agreed with our position, holding that a dismissal for want of prosecution acts as a bar to a subsequent appeal as to all issues that were presented on the earlier appeal. The Court also held that although they have inherent jurisdiction to consider such issues, plaintiff did not demonstrate any basis for the exercise of such discretion and accordingly, her appeal from the judgment was dismissed.

Garson & Jakub corrected a miscarriage of justice at the appellate level, wherein the Appellate Court vacated Judgment entered in favor of the plaintiff and reinstated the jury verdict. In this cervical cancer case, the defense elicited expert medical opinion testimony at trial from plaintiff’s subsequent treating gynecologic oncologist concerning the defendant physician’s treatment of plaintiff’s cervical dysplasia. The jury found in favor of Mr. Garson’s client. However, the trial Court granted plaintiff’s post-verdict motion which set aside the jury verdict and entered Judgment for the plaintiff. On appeal, our attorney successfully persuaded the panel that there was more than sufficient evidence presented at trial to support a jury verdict in favor of the defend-ant physician. The Second Department agreed and ordered the jury verdict be reinstated with judgment entered in favor of the defendant and awarded costs against plaintiff.

In another case, we successfully defeated the plaintiff’s appeal of the lower Court’s granting of summary judgment in a case involving the care by internists during the decedent’s twenty-day admission to a nursing home. The plaintiff-appellant argued that his expert’s opinions were based on circumstantial evidence and sufficient to create a question of fact. Our attorney maintained that the plaintiff’s expert’s opinions were based on assumptions and not facts contained within the record. The Appellate Court agreed and affirmed the dismissal finding the plaintiff’s expert’s opinions to be speculative and conclusory in nature. Plaintiff’s Motion for Leave to Appeal to the Court of Appeals was denied.

Garson & Jakub LLP successfully defeated the plaintiff’s appeal of the lower Court’s granting of the defendant surgeon’s motion for renewal of summary judgment based upon a change in the law of the case. The case alleged a delay in diagnosing liver abscesses following a cholecystectomy, which ultimately resulted in death. The plaintiff submitted amended and new expert affirmations in opposition to the renewal motion for summary judgment by the surgeon. The trial court did not consider plaintiff’s “newly discovered” evidence and granted summary judgment. The Appellate Court agreed with our argument that the trial court properly disregarded plaintiff’s renewal arguments, since they were based on evidence previously known at the time of the original summary judgment motion and that the “new” evidence was nothing more than affirmations from newly retained experts.