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December 05, 2005


Michael Hutter

The Fourth Department takes a different view and permits RIL to be used as a basis to obtain S/J. See, Manning, 12 AD3d 1091. The Court's use of RIL in such a manner rests upon a determination that the inference of negligence is inescapable. A good discussion of the application of the 4th Dept law can be found in Kemak v. Syracuse Unversity, NY Slip Op 31667 (Sup Ct 2002). As Matt states, it does seem to be an odd use of the doctrine even with the "inescapable" limit.

Bill Altreuter

My first take is, "why not"? Certainly in the context of medical malpractice it would make sense. (Actually, my all-time favorite case about misplaced sponges is your partner, Al D'Aquino's Munchausen Syndrome case.)

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