In our column of June 2011, we discussed what was then the Second Department’s recent decision in Stukas v. Streiter, 83 A.D.3d 18 (2d Dept. 2011), which clarified the law on summary judgment and held that a plaintiff is required to establish the existence of an issue of fact as to causation in opposition to summary judgment only if the moving defendant has satisfied its burden on that issue by submitting proof that it did not cause any injury.1 Up to that point, a long line of Second Department decisions recited the contrary rule that once a medical malpractice defendant demonstrates that there was no departure from accepted practice or that any departure was not a proximate cause of injury, the burden shifts to the plaintiff to establish that there was a departure and that it caused injury.
The effect of the rule was that a moving defendant could establish entitlement to summary judgment by submitting evidence only that there was no departure, while ignoring causation altogether, and that in order to defeat the motion, the plaintiff would have to prove both departures and causation.
This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.
To view this content, please continue to their sites.
Not a Lexis Subscriber?
Subscribe Now
Not a Bloomberg Law Subscriber?
Subscribe Now
LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.
For questions call 1-877-256-2472 or contact us at [email protected]
