Robert R. Sappe successfully opposed the plaintiff’s effort to reverse a case dismissal against Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client, a local orthopedic surgeon. Sappe previously obtained summary judgment in favor of FKC&S’s client, who had performed surgery on a tri-malleolar ankle fracture sustained by the plaintiff in 2020.
The plaintiff alleged that the surgeon improperly placed an orthopedic fixation plate and screws in her ankle in such a manner as to cause ankle instability and nerve injury in her foot. In the original summary judgment motion, Sappe successfully demonstrated that the plaintiff failed to prove any malpractice by the orthopedic surgeon, and that her alleged injuries were unrelated to the plate and screws.
The plaintiff tried to vacate the dismissal by making a motion to renew and reargue before the same judge. A motion to reargue allows the plaintiff the opportunity to demonstrate to the judge that their prior decision was incorrect because they misapprehended some important fact or controlling principle of law.
A motion to renew allows the plaintiff the opportunity to submit new evidence to the judge which, if submitted on the first motion, would have changed the outcome. However, for a motion to renew to succeed, the plaintiff must demonstrate that the new evidence was only recently discovered or otherwise was not available at the time of the original summary judgment motion.
Sappe successfully argued that the original summary judgment motion was correctly decided. He was also successful in demonstrating that the plaintiff’s “new” evidence (which consisted of a more detailed affirmation from the same expert that the plaintiff used to oppose the summary judgment motion) was not “new” because she could have submitted it on the original summary judgment motion but did not. Sappe also demonstrated that, even if the more detailed expert affirmation had been submitted during the original summary judgment motion, it still would have been insufficient.
The judge agreed with all of Sappe’s arguments and upheld the dismissal of the case against FKC&S’s client.