Parker v. Nolan
Civil Procedure | Evidence | Medical Malpractice
- Appellate Term, First Department
- Before: Hunter, Jr., J.P., Shulman, Torres, JJ.
Cite as: Parker v. Nolan, 570808/11, NYLJ 1202585760144, at *1 (App. Tm., 1st, Decided August 24, 2012)
Before: Hunter, Jr., J.P., Shulman, Torres, JJ.
Decided: August 24, 2012
Plaintiff appeals from an order of the Small Claims Part of the Civil Court of the City of New York, New York County (Arthur F. Engoron, J.), dated April 7, 2011, which granted defendant's oral motion to dismiss the action.
Order (Arthur Engoron, J.), dated April 7, 2011, reversed, without costs, motion denied, action reinstated and matter remanded for further proceedings.
This small claims action, seeking damages for economic loss allegedly caused by the medical defendants, was dismissed on defendants' oral motion prior to any proof being taken on the adjourned trial date on the ground that plaintiff did not present a medical witness to testify in
what the court characterized as a "medical malpractice case." However, based upon the abbreviated record developed below, we cannot presently determine the true nature of plaintiff's vaguely stated claim, whether it be simple negligence or, instead, malpractice with its threshold requirement of medical expert opinion (see and compare Francis v. Montefiore Hosp., 190 Misc 2d 278 ). The terse statement of the claim provided by plaintiff to the clerk and reduced to writing in the case record card did not expressly identify the theory of the case as sounding in medical malpractice and, even if it had, would not necessarily preclude a recovery of damages otherwise shown at trial and sustainable on the record (see Walker v. Mergler, 2001 NY Slip Op 40613[U] [App Term, 1st Dept]). Given the procedural posture of this case and the incomplete and unsatisfactory state of the record, summary dismissal of plaintiff's small claim was premature.
While the prior court directive that plaintiff produce a medical expert constituted the law of the case, that doctrine applies only between courts of coordinate jurisdiction and is not binding on an appellate court (see
Martin v. City of Cohoes, 37 NY2d 162, 165 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.