Preview
FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020
NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF PUTNAM
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S.C., an infant, by her Parents and Natural Guardians, Index No.: 500539/2020
SAMANTHA CANORO and CHRISTOPHER CANORO,
and SAMANTHA CANORO, individually, and
CHRISTOPHER CANORO, individually,
Plaintiffs, REPLY AFFIRMATION
- against -
LINDA STOCKER, SUSAN L. VOSKO, CAREMOUNT
MEDICAL, P.C. and PUTNAM HOSPITAL CENTER,
Defendants.
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Matthew A. Bialor, Esq., an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following under penalties of perjury:
1. I am an associate with the firm of Vouté, Lohrfink, McAndrew, Meisner &
Roberts, LLP, attorneys for defendants, LINDA STOCKER, CNM (s/h/a LINDA STOCKER),
SUSAN L. VOSKO, M.D. (s/h/a SUSAN L. VOSKO) and CAREMOUNT MEDICAL, P.C.
(hereinafter referred to as “CNM Stocker”, “Dr. Vosko”, “Caremount” or “defendants”). I am
fully familiar with the facts and circumstances surrounding this matter by virtue of the file
maintained by my office and my personal handling of this case.
2. I respectfully submit this affirmation in reply to plaintiffs’ opposition papers, and
in further support of Defendants’ motion for summary judgment.
ARGUMENTS
I. Plaintiffs’ Ob/Gyn Expert Dr. Sharma’s Affidavit Is Procedurally Invalid and
Inadmissible Under CPLR 2309(C) As It Was Taken Without the State
3. Dr. Sharma’s Expert Affidavit (NYSCEF Doc. No. 176) is procedurally invalid
as it was taken without the state, and without the requisite certificate of conformity pursuant to
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CPLR 2309(c). Specifically, Dr. Sharma’s Affidavit was purportedly signed in Alabama, but
does not indicate which County in Alabama. Id. As the Court is well aware, aside from the expert
affirmation being subscribed and affirmed by the doctor to be true under penalties of perjury
pursuant to CPLR 2106(b), the affirmation must also “comply with the additional formalities of
CPLR 2309 (c).” (U.S. Bank N.A. v. Langner, 168 AD3d 1021, 1023, 92 N.Y.S.3d 419 [2d Dep't
2019]). Under that provision, an “oath or affirmation taken without the state shall be treated as if
taken within the state” only if “accompanied by such [a] certificate . . . as would be required to
entitle a deed acknowledged without the state to be recorded within the state." Dr. Sharma’s
Affidavit is also not accompanied by the requisite certificate of conformity, rendering it
procedurally invalid. Thus, according to CPLR 2309(c), this Court must disregard Dr. Sharma’s
Affidavit in its entirety (See LaRusso v. Katz, 30 A.D.3d 240, 243, 818 N.Y.S.2d 17 [1st Dept
2006]).
4. Accordingly, plaintiffs’ invalid Ob/Gyn expert affidavit is inadmissible and
insufficient to raise a triable of fact.
II. Dr. Sharma’s Conclusory Opinions Are Contradicted by the Medical Evidence
5. Dr. Sharma’s opinion that Dr. Vosko used excessive traction when delivering the
baby is flatly contradicted by the contemporaneous medical evidence in this case. (See NYSCEF
Doc. No. 176 at ¶¶ 53-56). Specifically, the labor and delivery chart demonstrates that the infant
was delivered without any traction to the fetal head and the maneuvers utilized by Dr. Vosko --
McRoberts maneuver (bringing legs back to create more room in pelvis /open up pelvis) with
suprapubic pressure (which helps dislodge the anterior shoulder) and then posterior arm sweep
(placing one finger from each hand under the posterior axilla and applying gentle traction along
the curve of the pelvis to deliver the posterior shoulder) effected easy delivery within one minute
after the shoulder dystocia occurred. (Ex. O at 075-076; Ex. P). For this reason, Dr. Sharma’s
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unsupported conclusory opinions are contradicted by the medical evidence and must be
disregarded. See Grasso v. Angerami, 79 NY2d 813; Tatti v. Cummings, 193 AD2d 596; Ukonu
v. Velazquez, 213 AD2d 628; Dow v. Lenox Hill Hospital, 20 Misc3d 1132 (A); Simms v. APA
Truck Leasing Corp., 14 AD3d 322; Banco Popular of North America v. Victory Taxi
Management, 1 NY3d 381.
6. Dr. Sharma’s conclusory opinion also fails to address the opinion of Defendants’
Ob/Gyn expert Dr. D’Alton’s that the maneuvers utilized by Dr. Vosko are not only the standard
of care, but also avoid the use of excessive traction. (Ex. A at ¶¶ 49, 52). Indeed, Dr. Sharma’s
Affidavit completely fails to address or discuss the delivery maneuvers utilized by Dr. Vosko
and documented in the Putnam Hospital labor and delivery chart. As plaintiff failed to prove a
departure or causation with admissible or sufficient expert medical testimony, the action must be
dismissed. See Kaplan v. Hamilton Medical Associates, P.C. 262 A.D.2d 609 (2nd Dep’t 1999)
(plaintiff’s expert failed to address the contentions of one of the appellants’ experts. The expert
also made conclusory statements as to the appellants’ respective examinations and testing of the
plaintiff based either on facts not in evidence or which directly contradicted the evidence.
Accordingly, the affidavit was insufficient to meet the plaintiff's burden of showing a triable
factual issue); see also Murray v. Hirsch, 58 A.D.3d 701 (2nd Dep’t 2009); Lane v. Feinberg,
293 A.D.2d 654 (2nd Dep’t 2002) (“[t]he remainder of the plaintiffs’ submissions failed to
demonstrate the existence of a triable issue of fact, as their expert’s affidavit contained only
conclusory statements and failed to address the statements made by the respondents’ expert.”).
7. Dr. Sharma’s opinion that Dr. Vosko violated the standard of care by not ordering
a second nurse to aid in performing the McRoberts maneuver to effect delivery is also flatly
contradicted by the medical evidence. (NYSCEF Doc. No. 176). In attempting to provide a
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foundation for this this opinion, Dr. Sharma incorrectly states that only one nurse performed the
McRoberts maneuver and refers the Court to Dr. Vosko’s deposition transcript at pages 31-32.
(Id. at 51; NYSCEF Doc. No. 130 at pp. 31-32). To the contrary, Dr. Vosko’s deposition
testimony was as follows:
Q. These things that - - The maneuvers you just talked about and
we will go through it, they have to be done very quickly, correct?
A. Correct.
Q. How many people were there to help you, if you remember?
A. Myself and two nurses.
Q. You say McRoberts position by RN. So, one of the nurses did
what with her legs?
A. We pulled her legs back up against her body. So, the patient
was already positioned in stirrups and in position for delivery. And
the nurses would have pulled the legs backwards to allow for
potentially more room.
Q. Towards her shoulders?
A. Correct.
Q. You don't say nurses but you say one nurse, McRoberts position
by RN?
A. Again, nomenclature, I don't recall if it was one or two nurses
facilitating in that but most likely it was one nurse.
Q. They way to do a McRoberts position is to have an individual,
it can be a nurse, doctor, whomever on both legs pushing both legs
up, right?
A. No.
Q. So you think one nurse pushing both legs up can get the legs up
high enough to effectuate the McRoberts maneuver?
A. Yes.
Q. Two would be better or not?
A. Not necessarily.
See NYSCEF Doc. No. 130 at pp. 31-32.
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8. Thus, the evidence in this case does not demonstrate that one labor nurse
performed the McRoberts maneuver to assist in the delivery.
9. In any event, Dr. Sharma provides no explanation for his conclusory opinion that
the addition of another nurse to aid in the McRoberts maneuver would have enabled the maneuver
to be performed properly and would have facilitated the birth in a medically acceptable fashion
which would not have caused injury to the infant-plaintiff. Whether one or two nurses held the
patient’s legs back in the McRoberts position is irrelevant since Dr. Vosko testified that the
maneuver can be performed by one person. His opinion is also flatly contradicted by the medical
record which states that the patient was already in stirrups and she was placed in the McRobert’s
maneuver once the shoulder dystocia occurred. (NYSCEF Doc. No. 176 at ¶ 52).
10. Dr. Sharma’s opinion that Ms. Canoro was medically unfit to give birth vaginally
is premised and contingent upon the expert’s factually incorrect opinion that defendants violated
the standard of care by failing to recognize and respond to Ms. Canoro’s prior medical history of
a back injury and tilted pelvis. (NYSCEF Doc. No. 176 at ¶ 42). This incorrect statement is flatly
contradicted by the prenatal medical chart which shows that Ms. Canoro’s prior history of a back
injury and tilted pelvis was reported, acknowledged, closely monitored and she was treated for
these conditions throughout her prenatal course and labor and delivery, including consults by
pain management and maternal fetal medicine specialists, as follows:
- August 29, 2017: “herniated discs L4/L5; anular tear. Refer to pain
management; is not comfortable tear managing pain in pregnancy
stopped neurontin 5/2017 MFM (maternal fetal medicine) consult;
Infrequent, low dose med use (OTC) including NSAIDS in
pregnancy is of little concern. If using NSAIDS >1-2x/week close
MFM surveillance advised. If Aleve (pt used successfully prior to
pregnancy) is problematic, MFM strongly supports narcotic rx prn
as well with pt understanding of risks and limitations. All of the
above were explained to pt by Dr. Kim during consultation”.
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- September 20, 2017: “Patient had a lot of questions and concerns,
such as her severe back pain, per LP refer her to her PCP or wait
for Ortho she has appt in 3 weeks but traveling to Hawaii next
week. Gave letter for fly clearance. Answered all questions and she
understands and has all necessary contact infor for future need.”
- October 30, 2017: “Pt presents with concerns re: occasional, sharp
pain into her groin/ vagina when she goes from sitting to standing,
sometimes while walking and when rolling over in bed. Denies
urinary c/o, vag leakage/ bleeding and has begun to feel FM [fetal
movement]. urine C&S [culture and sensitivity] sent. In addition,
pt with known h/o back pain s/p work injury and sciatica. Was
followed by a physiatrist in NYC prior to pregnancy for whom she
was given pain meds and Neurontin, all of which she stopped prior
to pregnancy. However, she is finding left lower back pain that
radiates into her buttock and leg. Sxs [symptoms] are not improved
with Tylenol use. She saw pain management at PHC who felt
unable to manage pain as she is pregnant. Pt is requesting an
alternative. Case d/w [discussed with] Dr. Burgess and we will
research an alternative pain management specialist that may be
able to help. In addition, pt was sent to ortho for eval of her injury
(she has films/reports) for management moving forward exam:
abdomen: gravid/soft, nt [non tender] round ligament pain
reviewed”.
- November 15, 2017: “pt is s/p eval with Dr. Kim re: pain
management pt has taken no pain meds as she is worried about
risks to baby will send in rx for 12 percocet for which pt can use if
no other choice but pt is to keep record of when taken and if more
is needed, pt to f/u with pain management in NYC pt to try yoga
as well”.
- December 13, 2017: “Reports still with significant back pain,
trying to stretch daily and walking 3-4 times a week. Has been
using Tylenol with no relief, has used Aleve once last week on
Friday and reports this did not help. Has not been using Percocets.
Has not tried acupuncture or chiropractor, referred today to local
chiropractor for evaluation. Also reports increasing pain and right
hand with carpal tunnel symptoms, referred to orthopedics for
evaluation, has been using a wrist splint at home.”
- December 29, 2017: “Pelvic pain with walking. Problem visit with
pelvic pubic bone pain cw ligament and stretching no dysuria also
vaginal discharge with malodor speculum exam no discharge wet
prep neg Affirm sent advised yoga exercises for pelvic floor”.
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(NYSCEF Doc. No. 139 at 003-005, 113).
11. The following entry in the PHC labor and delivery chart also directly contradicts
Dr. Sharma’s factually incorrect opinion that the defendants failed to recognize and respond to
Ms. Canoro’s prior medical history of a back injury and tilted pelvis:
- March 31, 2018 at 11:30 a.m.: “Patient pushing well with
contractions, in stirrups to accommodate previous back injury.”
(Exhibit O at 074).
12. The foregoing contemporaneous medical evidence entirely dispels Dr. Sharma’s
blatantly incorrect and misleading statement that “even though the defendants were fully
informed, they chose to disregard Ms. Canoro’s concerns, at the same time disregarding her
medical history as unimportant. These concerns in fact were important and should have been
taken into account when determining Ms. Canoro’s birth plan.” (NYSCEF Doc. No. 176 at ¶ 41).
13. Ms. Canoro, in her affirmation in opposition to the instant motion, also concedes
that the defendants addressed her concerns when deciding to plan for a vaginal delivery.
(NYSCEF Doc. No. 179 at ¶ 6). Ms. Canoro testified: “They consistently told me I would be fine
delivering naturally even though I had brought up my concerns multiple times.” Id.
14. The contemporaneous medical records show that Ms. Canoro’s back and pelvic
issues were recognized, closely monitored and addressed with comprehensive multispecialty
medical care and treatment throughout her prenatal period and her labor and delivery at PHC.
Moreover, Dr. Sharma does not claim or opine that Ms. Canoro’s prenatal back pain caused the
shoulder dystocia to occur or the infant-plaintiff’s brachial plexus injury. The labor note
referenced above, that she was “pushing well with contractions, in stirrups to accommodate
previous back injury,” also flatly contradicts Dr. Sharma’s opinion that her back/pelvis pain made
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her medically unfit to deliver vaginally. (Exhibit O at 074). Accordingly, Dr. Sharma’s opinion
that Ms. Canoro was medically unfit to deliver vaginally must be disregarded as a matter of law.
15. Finally, Dr. Sharma’s opinion that Ms. Canoro needed a C-Section delivery
because of her preexisting back and pelvic issues is also contradicted by the medical evidence
for the same reasons as set forth above. (NYSCEF Docs. Nos. 43-45). Again, this erroneous
opinion is based on the false pretense that Ms. Canoro’s back and pelvic issues were ignored –
they were not. Rather, her back and pelvic issues were appreciated, managed and addressed
pursuant to the standard of care. Accordingly, Dr. Sharma’s contradictory opinions have no
probative value and should be disregarded.
16. Dr. Sharma’s opinions are therefore insufficient to raise a triable issue of fact.
III. Plaintiffs’ Pediatric Neurology Expert Dr. Daniel Adler’s Causation Opinions Fail to
Address and Are Directly Contradicted by the Medical Evidence and Must Be
Disregarded
17. Dr. Adler’s causation opinions are based on the factually incorrect assertion that
the infant plaintiff sustained a nerve tear of the upper brachial plexus during the labor and
delivery. (NYSCEF Doc. No. 177 at ¶ 9, 48). This opinion ignores and is directly contradicted
by all the objective medical evidence in this case which unequivocally demonstrates that the
infant plaintiff did not sustain a nerve tear to the brachial plexus. Rather, all the undisputed,
objective medical evidence demonstrates conclusively that the infant sustained a stretch injury,
and not a tear, of the brachial plexus. (NYSCEF Doc. No. 119 at ¶¶ 28-31); NYSCEF Docs. Nos.
150-155). For this reason, Dr. Adler’s unsupported opinions are contradicted by the medical
evidence and must be disregarded. See Grasso v. Angerami, 79 NY2d 813; Tatti v. Cummings,
193 AD2d 596; Ukonu v. Velazquez, 213 AD2d 628.
18. Dr. Adler’s contradictory opinion also fails to address the defendants’ Pediatric
Neurology expert Dr. Maytal’s evidence-based opinion that the infant sustained a stretch injury
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to the brachial plexus, and not a nerve tear injury from the shoulder dystocia and the natural
expulsive forces of labor. (NYSCEF Doc. No. 122 at ¶¶ 44-45). As plaintiffs failed to prove a
departure or causation with admissible or sufficient expert medical testimony, the action must be
dismissed. See Kaplan v. Hamilton Medical Associates, P.C. 262 A.D.2d 609 (2nd Dep’t 1999)
(plaintiff’s expert failed to address the contentions of one of the appellants’ experts. The expert
also made conclusory statements as to the appellants’ respective examinations and testing of the
plaintiff based either on facts not in evidence or which directly contradicted the evidence.
Accordingly, the affidavit was insufficient to meet the plaintiff's burden of showing a triable
factual issue); see also Murray v. Hirsch, 58 A.D.3d 701 (2nd Dep’t 2009); Lane v. Feinberg,
293 A.D.2d 654 (2nd Dep’t 2002) (“[t]he remainder of the plaintiffs’ submissions failed to
demonstrate the existence of a triable issue of fact, as their expert’s affidavit contained only
conclusory statements and failed to address the statements made by the respondents’ expert.”).
19. Also, Dr. Adler’s reliance on various medical literature to form a basis for his
contradictory causation opinions is impermissible because the literature when used for this
bolstering purpose is inadmissible hearsay. “In New York, scientific works generally are
excluded as hearsay when offered for their truth” (Hinlicky v. Dreyfuss, 6 NY3d 636 (2006)).
Similarly, “[s]cientific books or reports are excluded as hearsay when offered as proof of the
facts asserted in them” (Spensieri v. Lasky, 94 NY2d 231 (1999) (citing Prince, Richardson on
Evidence § 7-313 [Farrell 11th ed]). To similar effect, the Appellate Division, Third Department
follows the rule that medical literature offered on direct examination, as proof of the facts asserted
therein, constitutes inadmissible hearsay (Kirker v. Nicolla Jr., 256 AD2d 865, 867 (3d Dept
1998) (“generally, a scientific book or report must be excluded as hearsay if it is offered as proof
of the facts asserted therein”)).
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20. Dr. Adler’s opinions are therefore insufficient to raise a triable issue of fact.
IV. Plaintiffs’ Counsel’s Opinions Are Inadmissible Hearsay
21. Plaintiffs’ counsel’s various unqualified medical opinions throughout his
affirmation (NYSCEF Doc. No. 175) (i.e. “Ms. Canoro was not a candidate for vaginal delivery”,
“the vaginal birth caused severe injury to infant S.C.’s brachial plexus because she sustained a
shoulder dystocia during the delivery”, “it is inconsequential if the injury was caused by the
expulsive forces of labor”, etc.) are inadmissible hearsay and must be disregarded by this Court
because they have no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d
668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of
Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7
A.D.2d 886 (4th Dept.1959); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970 (N.Y.
App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept,
2006). Thus, counsel’s inadmissible, self-serving medical opinions cannot raise a triable issue of
fact.
V. Plaintiffs Samantha Canoro’s and Christopher Canoro’s Opinions Are Inadmissible
Hearsay
22. Plaintiffs’ various unqualified and unsupported medical opinions throughout their
affirmations (NYSCEF Docs. Nos. 178-179) are inadmissible hearsay and must be disregarded
by this Court because they have no probative value or evidentiary significance. Israelson v.
Rubin, 20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v.
City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply
Co., 7 A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v.
Stokes, 191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL
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208970 (N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455
(2d Dept, 2006).
23. Thus, plaintiffs’ inadmissible medical opinions cannot raise a triable issue of fact.
VI. Plaintiff Christopher Canoro’s Self-Serving Affirmation in Opposition to the Instant
Motion is Contradicted by the Medical Evidence
24. First, Mr. Canoro is not qualified to provide a medical opinion on Dr. Vosko’s
delivery. In any event, his assertion that Dr. Vosko pulled the infant out with force is contradicted
by the medical record which demonstrates that there was an easy delivery of the baby within one
minute after the shoulder dystocia occurred without any traction to the fetal head. (Ex. O at 075-
076; Ex. P). His Affidavit is also contradicted by his own deposition testimony where he
described his observation of Dr. Vosko delivering the infant and did not testify that she used
force to deliver the baby. (NYSCEF Doc. No. 133). Thus, Mr. Canoro’s legally inadmissible and
factually incorrect assertion that Dr. Vosko used force to deliver the baby must be disregarded
by this Court because it has no probative value or evidentiary significance. Israelson v. Rubin,
20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of
Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7
A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v. Stokes,
191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970
(N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept,
2006); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y. 3d 373, 384-385, 795 N.Y.S. 2d 502,
828 N.E. 2d 718; Palo v. Principio, 303 A. D.2d 478, 479, 759 N.Y.S.2d 623; Hirsch v. Morgan
Stanley & Co.,, 239 A. D. 2d 466, 467, 657 N.Y.S. 2d 448; Grasso v. Angerami, 79 NY2d 813;
Tatti v. Cummings, 193 AD2d 596; Ukonu v. Velazquez, 213 AD2d 628; Dow v. Lenox Hill
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Hospital, 20 Misc3d 1132 (A); Simms v. APA Truck Leasing Corp., 14 AD3d 322; Banco
Popular of North America v. Victory Taxi Management, 1 NY3d 381.
25. Thus, Mr. Canoro’s inadmissible, self-contradictory opinions cannot raise a
triable issue of fact.
VII. Plaintiffs’ Lack of Informed Consent Claim Must Be Dismissed
26. Plaintiffs and their Ob/Gyn expert Dr. Sharma concede that informed consent was
obtained for Ms. Canoro’s vaginal delivery. (NYSCEF Doc. No. 176 at ¶ 27; NYSCEF Doc. No.
180 at ¶ 9).
27. Dr. Sharma does not even attempt to argue that the defendants improperly
obtained informed consent. (NYSCEF Doc. No. 176).
28. Plaintiffs’ counsel’s arguments in opposition to the defendants’ motion to dismiss
the informed consent claim are not based on the medical evidence or Dr. Sharma’s affidavit.
(NYSCEF Doc. No. 175 at ¶¶ 36-46). Thus, plaintiffs’ counsel’s unsupported arguments
regarding informed consent are inadmissible hearsay and must be disregarded by this Court
because they have no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d
668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of
Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7
A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v. Stokes,
191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970
(N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept,
2006); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y. 3d 373, 384-385, 795 N.Y.S. 2d 502,
828 N.E. 2d 718; Palo v. Principio, 303 A. D.2d 478, 479, 759 N.Y.S.2d 623. Thus, counsel’s
inadmissible opinions cannot raise a triable issue of fact.
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29. Lastly, plaintiffs do not refute or even oppose Caremount’s motion to dismiss the
lack of informed consent claim on the basis that the claim is inapplicable to an institutional
defendant.
30. Defendants have established their prima facie entitlement to judgment as a matter
of law dismissing the cause of action for lack of informed consent. As plaintiffs cannot satisfy
the requisite elements for a lack of informed consent claim, this claim must be dismissed with
prejudice.
VIII. Caremount Cannot Be Held Vicariously Liable for the Negligence of Any Individuals
Other Than CNM Stocker And Dr. Vosko
31. Plaintiffs have not supplemented their bills of particulars to alleged vicarious
liability against Caremount for any individuals other than CNM Stocker and Dr. Vosko. Plaintiffs
have not asserted any direct claims against Caremount. The purpose of a bill of particulars is to
amplify the pleadings, limit the proof and prevent surprise at trial. Miccarelli v. Fleiss, 219
A.D.2d 469, 631 N.Y.S.2d 159 (1st Dep’t. 1995). Plaintiffs had a full opportunity to take
depositions of witnesses and gather discovery and voluntarily elected not to pursue additional
claims of vicarious liability against Caremount. Accordingly, upon granting dismissal of
plaintiffs’ malpractice and lack of informed consent claims against CNM Stocker and Dr. Vosko,
plaintiffs’ claim of vicarious liability against Caremount should also be dismissed with prejudice.
IX. Plaintiffs Samantha Canoro’s and Christopher Canoro’s Derivative Causes of Action
Cannot Survive Dismissal of The Direct Causes of Action
32. Moving defendants respectfully submit that it has been demonstrated, and the
plaintiffs cannot rebut the defendants’ entitlement to summary judgment on the underlying
causes of action. Accordingly, the derivative claims on the part of the infant-plaintiff’s parents,
Samantha Canoro and Christopher Canoro, must be dismissed as well. See Camadeo v. Leeds,
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290 A.D.2d 355 (1st Dept. 2002); see also Maddox v. City of New York, 108 A.D.2d 42 (2nd Dept.
1985), aff’d 66 N.Y.2d 270 (1985).
CONCLUSION
33. Defendants have made a prima facie demonstration of their entitlement to
summary judgment as a matter of law; and plaintiffs have failed to raise a triable issue of material
fact with competent evidence. Accordingly, the defendants respectfully request summary
judgment and a dismissal of plaintiffs’ Verified Complaint against them with prejudice.
WHEREFORE, it is respectfully requested that the defendants’ motion for summary
judgment be granted in its entirety, and an Order be issued pursuant to CPLR § 3212 dismissing
plaintiffs’ Verified Complaint with prejudice, as against the moving defendants; amending the
caption to delete the moving defendants from this action; permitting the moving defendants to
enter judgment; and for such other and further relief as this Court deems just and proper.
Dated: White Plains, New York
May 16, 2024
_______________________________
Matthew A. Bialor
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NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024
PRINTING SPECIFICATION CERTIFICATION
I hereby certify, pursuant to § 202.8-b(c) of the Uniform Civil Rules for the Supreme
Court and County Court, that the total number of words in this Affirmation (exclusive of the
caption as well as any table of contents, table of authorities and/or signature block) is 4,184 (per
the Microsoft word count tool) and is therefore in compliance with the applicable word count
limit.
Dated: White Plains, New York
May 16, 2024
_______________________________
Matthew A. Bialor
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Preview
FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PUTNAM -------------------------------------------------------------------------x S.C., an infant, by her Parents and Natural Guardians, Index No.: 500539/2020 SAMANTHA CANORO and CHRISTOPHER CANORO, and SAMANTHA CANORO, individually, and CHRISTOPHER CANORO, individually, Plaintiffs, REPLY AFFIRMATION - against - LINDA STOCKER, SUSAN L. VOSKO, CAREMOUNT MEDICAL, P.C. and PUTNAM HOSPITAL CENTER, Defendants. --------------------------------------------------------------------------x Matthew A. Bialor, Esq., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under penalties of perjury: 1. I am an associate with the firm of Vouté, Lohrfink, McAndrew, Meisner & Roberts, LLP, attorneys for defendants, LINDA STOCKER, CNM (s/h/a LINDA STOCKER), SUSAN L. VOSKO, M.D. (s/h/a SUSAN L. VOSKO) and CAREMOUNT MEDICAL, P.C. (hereinafter referred to as “CNM Stocker”, “Dr. Vosko”, “Caremount” or “defendants”). I am fully familiar with the facts and circumstances surrounding this matter by virtue of the file maintained by my office and my personal handling of this case. 2. I respectfully submit this affirmation in reply to plaintiffs’ opposition papers, and in further support of Defendants’ motion for summary judgment. ARGUMENTS I. Plaintiffs’ Ob/Gyn Expert Dr. Sharma’s Affidavit Is Procedurally Invalid and Inadmissible Under CPLR 2309(C) As It Was Taken Without the State 3. Dr. Sharma’s Expert Affidavit (NYSCEF Doc. No. 176) is procedurally invalid as it was taken without the state, and without the requisite certificate of conformity pursuant to 1 1 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 CPLR 2309(c). Specifically, Dr. Sharma’s Affidavit was purportedly signed in Alabama, but does not indicate which County in Alabama. Id. As the Court is well aware, aside from the expert affirmation being subscribed and affirmed by the doctor to be true under penalties of perjury pursuant to CPLR 2106(b), the affirmation must also “comply with the additional formalities of CPLR 2309 (c).” (U.S. Bank N.A. v. Langner, 168 AD3d 1021, 1023, 92 N.Y.S.3d 419 [2d Dep't 2019]). Under that provision, an “oath or affirmation taken without the state shall be treated as if taken within the state” only if “accompanied by such [a] certificate . . . as would be required to entitle a deed acknowledged without the state to be recorded within the state." Dr. Sharma’s Affidavit is also not accompanied by the requisite certificate of conformity, rendering it procedurally invalid. Thus, according to CPLR 2309(c), this Court must disregard Dr. Sharma’s Affidavit in its entirety (See LaRusso v. Katz, 30 A.D.3d 240, 243, 818 N.Y.S.2d 17 [1st Dept 2006]). 4. Accordingly, plaintiffs’ invalid Ob/Gyn expert affidavit is inadmissible and insufficient to raise a triable of fact. II. Dr. Sharma’s Conclusory Opinions Are Contradicted by the Medical Evidence 5. Dr. Sharma’s opinion that Dr. Vosko used excessive traction when delivering the baby is flatly contradicted by the contemporaneous medical evidence in this case. (See NYSCEF Doc. No. 176 at ¶¶ 53-56). Specifically, the labor and delivery chart demonstrates that the infant was delivered without any traction to the fetal head and the maneuvers utilized by Dr. Vosko -- McRoberts maneuver (bringing legs back to create more room in pelvis /open up pelvis) with suprapubic pressure (which helps dislodge the anterior shoulder) and then posterior arm sweep (placing one finger from each hand under the posterior axilla and applying gentle traction along the curve of the pelvis to deliver the posterior shoulder) effected easy delivery within one minute after the shoulder dystocia occurred. (Ex. O at 075-076; Ex. P). For this reason, Dr. Sharma’s 2 2 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 unsupported conclusory opinions are contradicted by the medical evidence and must be disregarded. See Grasso v. Angerami, 79 NY2d 813; Tatti v. Cummings, 193 AD2d 596; Ukonu v. Velazquez, 213 AD2d 628; Dow v. Lenox Hill Hospital, 20 Misc3d 1132 (A); Simms v. APA Truck Leasing Corp., 14 AD3d 322; Banco Popular of North America v. Victory Taxi Management, 1 NY3d 381. 6. Dr. Sharma’s conclusory opinion also fails to address the opinion of Defendants’ Ob/Gyn expert Dr. D’Alton’s that the maneuvers utilized by Dr. Vosko are not only the standard of care, but also avoid the use of excessive traction. (Ex. A at ¶¶ 49, 52). Indeed, Dr. Sharma’s Affidavit completely fails to address or discuss the delivery maneuvers utilized by Dr. Vosko and documented in the Putnam Hospital labor and delivery chart. As plaintiff failed to prove a departure or causation with admissible or sufficient expert medical testimony, the action must be dismissed. See Kaplan v. Hamilton Medical Associates, P.C. 262 A.D.2d 609 (2nd Dep’t 1999) (plaintiff’s expert failed to address the contentions of one of the appellants’ experts. The expert also made conclusory statements as to the appellants’ respective examinations and testing of the plaintiff based either on facts not in evidence or which directly contradicted the evidence. Accordingly, the affidavit was insufficient to meet the plaintiff's burden of showing a triable factual issue); see also Murray v. Hirsch, 58 A.D.3d 701 (2nd Dep’t 2009); Lane v. Feinberg, 293 A.D.2d 654 (2nd Dep’t 2002) (“[t]he remainder of the plaintiffs’ submissions failed to demonstrate the existence of a triable issue of fact, as their expert’s affidavit contained only conclusory statements and failed to address the statements made by the respondents’ expert.”). 7. Dr. Sharma’s opinion that Dr. Vosko violated the standard of care by not ordering a second nurse to aid in performing the McRoberts maneuver to effect delivery is also flatly contradicted by the medical evidence. (NYSCEF Doc. No. 176). In attempting to provide a 3 3 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 foundation for this this opinion, Dr. Sharma incorrectly states that only one nurse performed the McRoberts maneuver and refers the Court to Dr. Vosko’s deposition transcript at pages 31-32. (Id. at 51; NYSCEF Doc. No. 130 at pp. 31-32). To the contrary, Dr. Vosko’s deposition testimony was as follows: Q. These things that - - The maneuvers you just talked about and we will go through it, they have to be done very quickly, correct? A. Correct. Q. How many people were there to help you, if you remember? A. Myself and two nurses. Q. You say McRoberts position by RN. So, one of the nurses did what with her legs? A. We pulled her legs back up against her body. So, the patient was already positioned in stirrups and in position for delivery. And the nurses would have pulled the legs backwards to allow for potentially more room. Q. Towards her shoulders? A. Correct. Q. You don't say nurses but you say one nurse, McRoberts position by RN? A. Again, nomenclature, I don't recall if it was one or two nurses facilitating in that but most likely it was one nurse. Q. They way to do a McRoberts position is to have an individual, it can be a nurse, doctor, whomever on both legs pushing both legs up, right? A. No. Q. So you think one nurse pushing both legs up can get the legs up high enough to effectuate the McRoberts maneuver? A. Yes. Q. Two would be better or not? A. Not necessarily. See NYSCEF Doc. No. 130 at pp. 31-32. 4 4 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 8. Thus, the evidence in this case does not demonstrate that one labor nurse performed the McRoberts maneuver to assist in the delivery. 9. In any event, Dr. Sharma provides no explanation for his conclusory opinion that the addition of another nurse to aid in the McRoberts maneuver would have enabled the maneuver to be performed properly and would have facilitated the birth in a medically acceptable fashion which would not have caused injury to the infant-plaintiff. Whether one or two nurses held the patient’s legs back in the McRoberts position is irrelevant since Dr. Vosko testified that the maneuver can be performed by one person. His opinion is also flatly contradicted by the medical record which states that the patient was already in stirrups and she was placed in the McRobert’s maneuver once the shoulder dystocia occurred. (NYSCEF Doc. No. 176 at ¶ 52). 10. Dr. Sharma’s opinion that Ms. Canoro was medically unfit to give birth vaginally is premised and contingent upon the expert’s factually incorrect opinion that defendants violated the standard of care by failing to recognize and respond to Ms. Canoro’s prior medical history of a back injury and tilted pelvis. (NYSCEF Doc. No. 176 at ¶ 42). This incorrect statement is flatly contradicted by the prenatal medical chart which shows that Ms. Canoro’s prior history of a back injury and tilted pelvis was reported, acknowledged, closely monitored and she was treated for these conditions throughout her prenatal course and labor and delivery, including consults by pain management and maternal fetal medicine specialists, as follows: - August 29, 2017: “herniated discs L4/L5; anular tear. Refer to pain management; is not comfortable tear managing pain in pregnancy stopped neurontin 5/2017 MFM (maternal fetal medicine) consult; Infrequent, low dose med use (OTC) including NSAIDS in pregnancy is of little concern. If using NSAIDS >1-2x/week close MFM surveillance advised. If Aleve (pt used successfully prior to pregnancy) is problematic, MFM strongly supports narcotic rx prn as well with pt understanding of risks and limitations. All of the above were explained to pt by Dr. Kim during consultation”. 5 5 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 - September 20, 2017: “Patient had a lot of questions and concerns, such as her severe back pain, per LP refer her to her PCP or wait for Ortho she has appt in 3 weeks but traveling to Hawaii next week. Gave letter for fly clearance. Answered all questions and she understands and has all necessary contact infor for future need.” - October 30, 2017: “Pt presents with concerns re: occasional, sharp pain into her groin/ vagina when she goes from sitting to standing, sometimes while walking and when rolling over in bed. Denies urinary c/o, vag leakage/ bleeding and has begun to feel FM [fetal movement]. urine C&S [culture and sensitivity] sent. In addition, pt with known h/o back pain s/p work injury and sciatica. Was followed by a physiatrist in NYC prior to pregnancy for whom she was given pain meds and Neurontin, all of which she stopped prior to pregnancy. However, she is finding left lower back pain that radiates into her buttock and leg. Sxs [symptoms] are not improved with Tylenol use. She saw pain management at PHC who felt unable to manage pain as she is pregnant. Pt is requesting an alternative. Case d/w [discussed with] Dr. Burgess and we will research an alternative pain management specialist that may be able to help. In addition, pt was sent to ortho for eval of her injury (she has films/reports) for management moving forward exam: abdomen: gravid/soft, nt [non tender] round ligament pain reviewed”. - November 15, 2017: “pt is s/p eval with Dr. Kim re: pain management pt has taken no pain meds as she is worried about risks to baby will send in rx for 12 percocet for which pt can use if no other choice but pt is to keep record of when taken and if more is needed, pt to f/u with pain management in NYC pt to try yoga as well”. - December 13, 2017: “Reports still with significant back pain, trying to stretch daily and walking 3-4 times a week. Has been using Tylenol with no relief, has used Aleve once last week on Friday and reports this did not help. Has not been using Percocets. Has not tried acupuncture or chiropractor, referred today to local chiropractor for evaluation. Also reports increasing pain and right hand with carpal tunnel symptoms, referred to orthopedics for evaluation, has been using a wrist splint at home.” - December 29, 2017: “Pelvic pain with walking. Problem visit with pelvic pubic bone pain cw ligament and stretching no dysuria also vaginal discharge with malodor speculum exam no discharge wet prep neg Affirm sent advised yoga exercises for pelvic floor”. 6 6 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 (NYSCEF Doc. No. 139 at 003-005, 113). 11. The following entry in the PHC labor and delivery chart also directly contradicts Dr. Sharma’s factually incorrect opinion that the defendants failed to recognize and respond to Ms. Canoro’s prior medical history of a back injury and tilted pelvis: - March 31, 2018 at 11:30 a.m.: “Patient pushing well with contractions, in stirrups to accommodate previous back injury.” (Exhibit O at 074). 12. The foregoing contemporaneous medical evidence entirely dispels Dr. Sharma’s blatantly incorrect and misleading statement that “even though the defendants were fully informed, they chose to disregard Ms. Canoro’s concerns, at the same time disregarding her medical history as unimportant. These concerns in fact were important and should have been taken into account when determining Ms. Canoro’s birth plan.” (NYSCEF Doc. No. 176 at ¶ 41). 13. Ms. Canoro, in her affirmation in opposition to the instant motion, also concedes that the defendants addressed her concerns when deciding to plan for a vaginal delivery. (NYSCEF Doc. No. 179 at ¶ 6). Ms. Canoro testified: “They consistently told me I would be fine delivering naturally even though I had brought up my concerns multiple times.” Id. 14. The contemporaneous medical records show that Ms. Canoro’s back and pelvic issues were recognized, closely monitored and addressed with comprehensive multispecialty medical care and treatment throughout her prenatal period and her labor and delivery at PHC. Moreover, Dr. Sharma does not claim or opine that Ms. Canoro’s prenatal back pain caused the shoulder dystocia to occur or the infant-plaintiff’s brachial plexus injury. The labor note referenced above, that she was “pushing well with contractions, in stirrups to accommodate previous back injury,” also flatly contradicts Dr. Sharma’s opinion that her back/pelvis pain made 7 7 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 her medically unfit to deliver vaginally. (Exhibit O at 074). Accordingly, Dr. Sharma’s opinion that Ms. Canoro was medically unfit to deliver vaginally must be disregarded as a matter of law. 15. Finally, Dr. Sharma’s opinion that Ms. Canoro needed a C-Section delivery because of her preexisting back and pelvic issues is also contradicted by the medical evidence for the same reasons as set forth above. (NYSCEF Docs. Nos. 43-45). Again, this erroneous opinion is based on the false pretense that Ms. Canoro’s back and pelvic issues were ignored – they were not. Rather, her back and pelvic issues were appreciated, managed and addressed pursuant to the standard of care. Accordingly, Dr. Sharma’s contradictory opinions have no probative value and should be disregarded. 16. Dr. Sharma’s opinions are therefore insufficient to raise a triable issue of fact. III. Plaintiffs’ Pediatric Neurology Expert Dr. Daniel Adler’s Causation Opinions Fail to Address and Are Directly Contradicted by the Medical Evidence and Must Be Disregarded 17. Dr. Adler’s causation opinions are based on the factually incorrect assertion that the infant plaintiff sustained a nerve tear of the upper brachial plexus during the labor and delivery. (NYSCEF Doc. No. 177 at ¶ 9, 48). This opinion ignores and is directly contradicted by all the objective medical evidence in this case which unequivocally demonstrates that the infant plaintiff did not sustain a nerve tear to the brachial plexus. Rather, all the undisputed, objective medical evidence demonstrates conclusively that the infant sustained a stretch injury, and not a tear, of the brachial plexus. (NYSCEF Doc. No. 119 at ¶¶ 28-31); NYSCEF Docs. Nos. 150-155). For this reason, Dr. Adler’s unsupported opinions are contradicted by the medical evidence and must be disregarded. See Grasso v. Angerami, 79 NY2d 813; Tatti v. Cummings, 193 AD2d 596; Ukonu v. Velazquez, 213 AD2d 628. 18. Dr. Adler’s contradictory opinion also fails to address the defendants’ Pediatric Neurology expert Dr. Maytal’s evidence-based opinion that the infant sustained a stretch injury 8 8 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 to the brachial plexus, and not a nerve tear injury from the shoulder dystocia and the natural expulsive forces of labor. (NYSCEF Doc. No. 122 at ¶¶ 44-45). As plaintiffs failed to prove a departure or causation with admissible or sufficient expert medical testimony, the action must be dismissed. See Kaplan v. Hamilton Medical Associates, P.C. 262 A.D.2d 609 (2nd Dep’t 1999) (plaintiff’s expert failed to address the contentions of one of the appellants’ experts. The expert also made conclusory statements as to the appellants’ respective examinations and testing of the plaintiff based either on facts not in evidence or which directly contradicted the evidence. Accordingly, the affidavit was insufficient to meet the plaintiff's burden of showing a triable factual issue); see also Murray v. Hirsch, 58 A.D.3d 701 (2nd Dep’t 2009); Lane v. Feinberg, 293 A.D.2d 654 (2nd Dep’t 2002) (“[t]he remainder of the plaintiffs’ submissions failed to demonstrate the existence of a triable issue of fact, as their expert’s affidavit contained only conclusory statements and failed to address the statements made by the respondents’ expert.”). 19. Also, Dr. Adler’s reliance on various medical literature to form a basis for his contradictory causation opinions is impermissible because the literature when used for this bolstering purpose is inadmissible hearsay. “In New York, scientific works generally are excluded as hearsay when offered for their truth” (Hinlicky v. Dreyfuss, 6 NY3d 636 (2006)). Similarly, “[s]cientific books or reports are excluded as hearsay when offered as proof of the facts asserted in them” (Spensieri v. Lasky, 94 NY2d 231 (1999) (citing Prince, Richardson on Evidence § 7-313 [Farrell 11th ed]). To similar effect, the Appellate Division, Third Department follows the rule that medical literature offered on direct examination, as proof of the facts asserted therein, constitutes inadmissible hearsay (Kirker v. Nicolla Jr., 256 AD2d 865, 867 (3d Dept 1998) (“generally, a scientific book or report must be excluded as hearsay if it is offered as proof of the facts asserted therein”)). 9 9 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 20. Dr. Adler’s opinions are therefore insufficient to raise a triable issue of fact. IV. Plaintiffs’ Counsel’s Opinions Are Inadmissible Hearsay 21. Plaintiffs’ counsel’s various unqualified medical opinions throughout his affirmation (NYSCEF Doc. No. 175) (i.e. “Ms. Canoro was not a candidate for vaginal delivery”, “the vaginal birth caused severe injury to infant S.C.’s brachial plexus because she sustained a shoulder dystocia during the delivery”, “it is inconsequential if the injury was caused by the expulsive forces of labor”, etc.) are inadmissible hearsay and must be disregarded by this Court because they have no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept.1959); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970 (N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept, 2006). Thus, counsel’s inadmissible, self-serving medical opinions cannot raise a triable issue of fact. V. Plaintiffs Samantha Canoro’s and Christopher Canoro’s Opinions Are Inadmissible Hearsay 22. Plaintiffs’ various unqualified and unsupported medical opinions throughout their affirmations (NYSCEF Docs. Nos. 178-179) are inadmissible hearsay and must be disregarded by this Court because they have no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v. Stokes, 191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 10 10 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 208970 (N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept, 2006). 23. Thus, plaintiffs’ inadmissible medical opinions cannot raise a triable issue of fact. VI. Plaintiff Christopher Canoro’s Self-Serving Affirmation in Opposition to the Instant Motion is Contradicted by the Medical Evidence 24. First, Mr. Canoro is not qualified to provide a medical opinion on Dr. Vosko’s delivery. In any event, his assertion that Dr. Vosko pulled the infant out with force is contradicted by the medical record which demonstrates that there was an easy delivery of the baby within one minute after the shoulder dystocia occurred without any traction to the fetal head. (Ex. O at 075- 076; Ex. P). His Affidavit is also contradicted by his own deposition testimony where he described his observation of Dr. Vosko delivering the infant and did not testify that she used force to deliver the baby. (NYSCEF Doc. No. 133). Thus, Mr. Canoro’s legally inadmissible and factually incorrect assertion that Dr. Vosko used force to deliver the baby must be disregarded by this Court because it has no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v. Stokes, 191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970 (N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept, 2006); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y. 3d 373, 384-385, 795 N.Y.S. 2d 502, 828 N.E. 2d 718; Palo v. Principio, 303 A. D.2d 478, 479, 759 N.Y.S.2d 623; Hirsch v. Morgan Stanley & Co.,, 239 A. D. 2d 466, 467, 657 N.Y.S. 2d 448; Grasso v. Angerami, 79 NY2d 813; Tatti v. Cummings, 193 AD2d 596; Ukonu v. Velazquez, 213 AD2d 628; Dow v. Lenox Hill 11 11 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 Hospital, 20 Misc3d 1132 (A); Simms v. APA Truck Leasing Corp., 14 AD3d 322; Banco Popular of North America v. Victory Taxi Management, 1 NY3d 381. 25. Thus, Mr. Canoro’s inadmissible, self-contradictory opinions cannot raise a triable issue of fact. VII. Plaintiffs’ Lack of Informed Consent Claim Must Be Dismissed 26. Plaintiffs and their Ob/Gyn expert Dr. Sharma concede that informed consent was obtained for Ms. Canoro’s vaginal delivery. (NYSCEF Doc. No. 176 at ¶ 27; NYSCEF Doc. No. 180 at ¶ 9). 27. Dr. Sharma does not even attempt to argue that the defendants improperly obtained informed consent. (NYSCEF Doc. No. 176). 28. Plaintiffs’ counsel’s arguments in opposition to the defendants’ motion to dismiss the informed consent claim are not based on the medical evidence or Dr. Sharma’s affidavit. (NYSCEF Doc. No. 175 at ¶¶ 36-46). Thus, plaintiffs’ counsel’s unsupported arguments regarding informed consent are inadmissible hearsay and must be disregarded by this Court because they have no probative value or evidentiary significance. Israelson v. Rubin, 20 A.D.2d 668 (2nd Dept.1964), aff'd, 14 N.Y.2d 887 (1964); see also Erin Federico v. City of Mechanicville, 141 A.D.2d 1002 (3rd Dept.1988); Harry L. Cohen v. Genesee Supply Co., 7 A.D.2d 886 (4th Dept.1959); Johnson v. Phillips, 161 A.D.2d 269 (1st Dept.1999); Rue v. Stokes, 191 A.D.2d 245 (1st Dept.1993); Nerayoff v. Khorshad, No. 2017-10313, 2019 WL 208970 (N.Y. App. Div. Jan. 16, 2019); Warrington v. Ryder Truck Rental, Inc. 35 A.D.3d 455 (2d Dept, 2006); JMD Holding Corp. v. Congress Fin. Corp., 4 N.Y. 3d 373, 384-385, 795 N.Y.S. 2d 502, 828 N.E. 2d 718; Palo v. Principio, 303 A. D.2d 478, 479, 759 N.Y.S.2d 623. Thus, counsel’s inadmissible opinions cannot raise a triable issue of fact. 12 12 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 29. Lastly, plaintiffs do not refute or even oppose Caremount’s motion to dismiss the lack of informed consent claim on the basis that the claim is inapplicable to an institutional defendant. 30. Defendants have established their prima facie entitlement to judgment as a matter of law dismissing the cause of action for lack of informed consent. As plaintiffs cannot satisfy the requisite elements for a lack of informed consent claim, this claim must be dismissed with prejudice. VIII. Caremount Cannot Be Held Vicariously Liable for the Negligence of Any Individuals Other Than CNM Stocker And Dr. Vosko 31. Plaintiffs have not supplemented their bills of particulars to alleged vicarious liability against Caremount for any individuals other than CNM Stocker and Dr. Vosko. Plaintiffs have not asserted any direct claims against Caremount. The purpose of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial. Miccarelli v. Fleiss, 219 A.D.2d 469, 631 N.Y.S.2d 159 (1st Dep’t. 1995). Plaintiffs had a full opportunity to take depositions of witnesses and gather discovery and voluntarily elected not to pursue additional claims of vicarious liability against Caremount. Accordingly, upon granting dismissal of plaintiffs’ malpractice and lack of informed consent claims against CNM Stocker and Dr. Vosko, plaintiffs’ claim of vicarious liability against Caremount should also be dismissed with prejudice. IX. Plaintiffs Samantha Canoro’s and Christopher Canoro’s Derivative Causes of Action Cannot Survive Dismissal of The Direct Causes of Action 32. Moving defendants respectfully submit that it has been demonstrated, and the plaintiffs cannot rebut the defendants’ entitlement to summary judgment on the underlying causes of action. Accordingly, the derivative claims on the part of the infant-plaintiff’s parents, Samantha Canoro and Christopher Canoro, must be dismissed as well. See Camadeo v. Leeds, 13 13 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 290 A.D.2d 355 (1st Dept. 2002); see also Maddox v. City of New York, 108 A.D.2d 42 (2nd Dept. 1985), aff’d 66 N.Y.2d 270 (1985). CONCLUSION 33. Defendants have made a prima facie demonstration of their entitlement to summary judgment as a matter of law; and plaintiffs have failed to raise a triable issue of material fact with competent evidence. Accordingly, the defendants respectfully request summary judgment and a dismissal of plaintiffs’ Verified Complaint against them with prejudice. WHEREFORE, it is respectfully requested that the defendants’ motion for summary judgment be granted in its entirety, and an Order be issued pursuant to CPLR § 3212 dismissing plaintiffs’ Verified Complaint with prejudice, as against the moving defendants; amending the caption to delete the moving defendants from this action; permitting the moving defendants to enter judgment; and for such other and further relief as this Court deems just and proper. Dated: White Plains, New York May 16, 2024 _______________________________ Matthew A. Bialor 14 14 of 15 FILED: PUTNAM COUNTY CLERK 05/16/2024 08:19 PM INDEX NO. 500539/2020 NYSCEF DOC. NO. 182 RECEIVED NYSCEF: 05/16/2024 PRINTING SPECIFICATION CERTIFICATION I hereby certify, pursuant to § 202.8-b(c) of the Uniform Civil Rules for the Supreme Court and County Court, that the total number of words in this Affirmation (exclusive of the caption as well as any table of contents, table of authorities and/or signature block) is 4,184 (per the Microsoft word count tool) and is therefore in compliance with the applicable word count limit. Dated: White Plains, New York May 16, 2024 _______________________________ Matthew A. Bialor 15 15 of 15