Fiore v. Galang
| Decision Date | 28 March 1985 |
| Citation | 489 N.Y.S.2d 47,64 N.Y.2d 999,478 N.E.2d 188 |
| Parties | , 478 N.E.2d 188 de5 Esther K. FIORE et al., Appellants, v. Dominador GALANG et al., Defendants, and Benedictine Hospital, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
The order of the Appellate Division, 105 A.D.2d 970, 482 N.Y.S.2d 110, should be affirmed, with costs.
We agree that absent a sufficient affidavit of merits it was error, as a matter of law, not to grant defendant Hospital's motion for summary judgment (Kel Mgt. Corp. v. Rogers & Wells, 64 N.Y.2d 904; Canter v. Mulnick, 60 N.Y.2d 689, 468 N.Y.S.2d 462, 455 N.E.2d 1257; Stolowitz v. Mount Sinai Hosp., 60 N.Y.2d 685, 468 N.Y.S.2d 460, 455 N.E.2d 1255). Moreover, in light of plaintiffs' argument that the verified complaint should be accepted as an affidavit of merits (CPLR 105), we note that, except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert medical opinion evidence is required to demonstrate merit (cf. Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 34 N.E.2d 367). This malpractice claim is for negligence in the failure to diagnose cancer and in the performance of an abdominal operation, which are not matters within the ordinary experience of laypersons.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.
To continue reading
Request your trial
-
Zikianda v. Cnty. of Albany
...evidence'" with respect to each of these two elements. Milano v. Freed, 64 F.3d 91, 95 (2d Cir. 1995) (quoting Fiore v. Galang, 64 N.Y.2d 999, 1001, 489 N.Y.S.2d 739, 741 (1985)). If a doctor defending a malpractice case produces evidence that he did not divert from the standard of care or ......
-
Coolidge v. United States
...malpractice case in which no expert medical testimony is required is 'rare'") (citation omitted); see also Fiore v. Galang, 64 N.Y.2d 999, 1000-01, 489 N.Y.S.2d 47 (1985) ("except as to matters within the ordinary experience and knowledge of laymen, in a medical malpractice action, expert m......
-
Schoolcraft v. City of N.Y.
...and citations omitted). Expert medical opinions are typically required to substantiate or defeat such claims. See Fiore v. Galang, 64 N.Y.2d 999, 1001, 489 N.Y.S.2d 47, 478 N.E.2d 188, 189 (1985); Stukas, 918 N.Y.S.2d at 184; see also Sitts v. United States, 811 F.2d 736, 739 (2d Cir.1987) ......
-
Stukas v. Streiter
...to submit an affidavit of merit] ). In a fourth Court of Appeals decision, cited elsewhere in Amsler ( see Fiore v. Galang, 64 N.Y.2d 999, 489 N.Y.S.2d 47, 478 N.E.2d 188), the trial court issued a conditional order of preclusion, directing the plaintiffs to serve a bill of particulars upon......
-
CPLR 3126 conditional orders requiring disclosure "can't get no respect".
...(143) Canter v. Mulnick (Canter II), 60 N.Y.2d 689, 691, 455 N.E.2d 1257, 1258, 468 N.Y.S.2d 462, 463 (1983); see also Fiore v. Galang, 64 N.Y.2d 999, 1000, 478 N.E.2d 188, 188-89, 489 N.Y.S.2d 47, 48 (1985) ("We agree that absent a sufficient affidavit of merits it was error, as a matter o......