Second Department Makes Rare Admission

In Stukas v. Streiter, the Second Department made a rare admission that its decisions related to a plaintiff's burden in opposition to a motion for summary judgment in medical malpractice cases "lacked a precise consistency."  In Stukas, the defendant moved for summary judgment, making a prima facie case that it did not depart from standard and accepted practices. In response the plaintiff attempted to raise a question of fact on that issue, but did not address the issue of causation.  At issue on appeal was whether the plaintiff was required to address causation, even though the defendant had not raised it in its motion.  The Appellate Division held that despite many of its own cases stating or implying to the contrary, a nonmoving party is not required to raise a triable issue of fact when the moving party has not addressed the issue.