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.

In Stukas, the Second Department traced its prior decisions and found that the rule had developed inadvertently over time, and that it conflicted with several basic principles applicable to summary judgment motions. It therefore effectively (although not expressly) overruled that line of cases, and held that a plaintiff opposing a summary judgment motion must only establish causation if the moving defendant's submission were sufficient to establish prima facie entitlement to summary judgment on that issue.