A hospital that missed a submission deadline by almost two months in a medical malpractice case was properly denied summary judgment, said a divided Manhattan appellate court.

Questioning the failure to explain the tardiness and the labeling of the document as a “cross motion,” Justice Paul Feinman (See Profile) of the Appellate Division, First Department wrote in Kershaw v. Hospital for Special Surgery, 9655A, “We are concerned that the respect for court orders and statutory mandates and the authoritative voice of the Court of Appeals are undermined each time an untimely motion is considered simply by labeling it a ‘cross motion’ notwithstanding the absence of a reasonable explanation for its untimeliness.”

The affirmance is not based on the merits of the motion, which stems from the decision not to perform surgery on a man coping with the increasing loss of the use of his right arm, hand and shoulder, said Feinman in the Dec. 24 ruling. He was joined by Justices Rolando Acosta (See Profile) and David Saxe (See Profile). The panel heard oral arguments on March 7.

But Justice Peter Tom (See Profile), joined by Justice Helen Freedman (See Profile), said the majority’s application of the law was “unnecessarily rigid” in a case with a “marginally late filing.” Moreover, Tom said the hospital’s arguments had merit and the motion’s lateness had not caused prejudice.

“Given the budgetary constraints presently confronted by the court system, this is hardly a fitting time to require trial of a matter devoid of apparent merit and otherwise amenable to disposition on motion, and the ‘genuine need’ to be accommodated is that of the court to proceed expeditiously,” Tom wrote.

In 1994, Bruce Kershaw underwent spinal surgery at the Hospital for Special Surgery to address increasing weakness in his left shoulder and upper extremities.

Beginning in 2003, he returned to the hospital several times, complaining of problems in his right-side extremities. By 2004, two doctors concluded surgery would not help and posed risk of paralysis or death. Kershaw then sought treatment at the New York University Medical Center Hospital for Joint Diseases. An examining physician there concluded there should be no lumbar spine surgery “at this time.”

Kershaw ultimately had surgery at Mount Sinai Hospital in December 2005. Almost a year after surgery, Kershaw said his upper extremity strength had not improved and he had pain and numbness in his right hand and arm.

Kershaw sued the Hospital for Special Surgery and the New York University Medical Center Hospital for Joint Diseases in 2007. He argued the hospitals’ failure to timely perform surgery left him with muscular and neurological damages that would not have developed if the procedure had been performed sooner.

Manhattan Supreme Court Justice Alice Schlesinger set a Nov. 14, 2011 deadline for defendants to seek summary judgment.

NYU submitted its motion on Nov. 11.

The Hospital for Special Surgery “cross moved” for summary judgment on Jan. 10, 2012, offering no reason for its late filing and arguing the motion should be considered on the merits because it sought relief on the same issues as NYU.

In July 2012, Schlesinger granted NYU’s motion, but only the Hospital for Special Surgery’s motion to the extent of dismissing a claim of lack of informed consent. Otherwise, she denied the motion as “clearly untimely.”

Schlesinger looked to a 2004 Court of Appeals decision, Brill v. City of New York, 2 NY3d 648, which dealt with the “recurring scenario” of tardy summary judgment motions that were “ignor[ing] statutory law, disrupt[ing] trial calendars, and undermin[ing] the goals of orderliness and efficiency in state court practice.”

To curb late motions, the Brill court scrutinized CPLR 3212 (a) and held summary judgment motions had to be submitted within 120 days of filing the note of issue or a time established by the court. When untimely, the proponent of the motion had to show good cause for lateness or it would not be considered.

According to the majority, Schlesinger said in dicta that if she reviewed the merits, the bid had to be denied due to questions of fact.

Both the Hospital for Special Surgery and Kershaw appealed.

The full panel agreed Schlesinger was correct in granting NYU’s summary judgment bid but parted ways on the handling of the Hospital for Special Surgery’s motion.

“We do not hold that when a summary judgment motion is filed past the deadline, the court must automatically reject it,” Feinman said. “Rather, we enforce the law as written by the legislature, and as explained in Brill. 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.”

Feinman acknowledged that since Brill the First Department has decided “untimely but correctly labeled cross motions may be considered at least as to the issues that are the same in both it and the motion, without needing to show good cause.”

But the Hospital for Special Surgery’s bid was “not a true cross motion,” he said, noting that it was “comprised of many items not contained” in NYU’s motion papers.

Feinman rejected the dissent’s argument that the affirmance was putting surgeons in an “impossible situation” of either performing “ill-advised” surgery and facing liability for aggravating a condition or facing liability for refusal.

“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,” he said.

But Tom observed that Brill was attempting to prevent delays incurred with summary judgment motions filed on the eve of trial.

Here, “the primary objective of Brill to discourage dilatory conduct is not implicated,” he said.

Feinman said Tom was trying to “limit the reach of Brill” to instances where a party filed a summary judgment motion well after deadline and the matter was on the trial calendar.

But Tom claimed that was a “distorted analysis” of his view. “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,” said Tom.

“Strict and rigid application of Brill is even less understandable given the similarity of the grounds advanced” by the hospitals, Tom said.

Shoshana Bookson of Manhattan represented Kershaw at the lower court and on appeal. The majority, she said, “got it exactly right. It was a well-thought out decision” on the law, the practical effect for litigants and “the respect the court is seeking for deadlines and the orderly progress of litigation.”

Brian Isaac of Pollack, Pollack, Isaac & DeCicco also represented Kershaw on appeal.

Bhalinder Rikhye of Bartlett, McDonough & Monaghan in Mineola represented the Hospital for Special Surgery. The firm declined to comment.

Gina Bernardi Di Folco of McAloon & Friedman represented NYU Medical Center Hospital for Joint Disease.