Summary Judgement Granted on Reargument

HPM&B recently obtained summary judgment dismissal after moving to reargue for our client, a renowned New York City major hospital system.  Plaintiff alleged that the hospital’s staff, including co-defendant emergency medicine attending, failed to diagnose and treat a left eye globe rupture  in the emergency department after a fall one day earlier.  Plaintiff alleged that the alleged delay in diagnosis resulted in the need for an enucleation of the left eye.  HPM&B moved for summary judgment with the support of a board-certified ophthalmic plastic & reconstructive surgeon who was also plaintiff’s treating surgeon who performed the subject enucleation.  The expert explained in detail in her affidavit that the alleged delay in diagnosis had no impact on her recommendation that plaintiff undergo an enucleation.  She advised plaintiff of both the option to repair the globe rupture versus an enucleation, and she strongly recommended an enucleation because a globe repair put him at risk of losing vision in both eyes due to a condition called sympathetic ophthalmia, also known as spared eye syndrome.  Plaintiff consented to the enucleation and signed the written informed consent form.

Our motion was fully submitted before the Court in early 2021.  The parties orally argued the motion in September 2021.  The motion was denied in October 2023.  HPM&B moved to reargue and orally argued that motion in June 2024.  In February 2025, the Supreme Court judge granted reargument and reversed her prior Decision on the basis that she had misapprehended the facts.  She found that plaintiff’s expert did not address the defendant’s expert’s causation argument including the risk of sympathetic ophthalmia associated with globe repair, which was a crucial element of the defense expert’s position.  The court cited Appellate Division case law holding that the plaintiff’s expert failed to raise a triable issue of fact because the expert failed to address important elements of the defense expert’s affidavit.  Therefore, the case was dismissed in its entirety.