Motion for Child Support in Syed Aftab Karim, Md, Faans v. Ramanathan Raju, Md, Mba, Facs, Fache, As President And Chief Executive Officer Of The New York City Health And Hospitals Corporation, New York City Health And Hospitals Corporation, Milton Nunez, As Executive Director Of Lincoln Hospital And Mental Health Center.| Trellis.Law

On July 31, 2014 a Motion-Secondary was filed involving a dispute between Syed Aftab Karim, Md, Faans, and Milton Nunez, As Executive Director Of Lincoln Hospital And Mental Health Center., New York City Health And Hospitals Corporation, Ramanathan Raju, Md, Mba, Facs, Fache, As President And Chief Executive Officer Of The New York City Health And Hospitals Corporation, for Special Proceedings - CPLR Article 78 in the District Court of New York County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x
SYED AFTAB KARIM, MD, FAANS,

Petitioner,

-against-

RAMANATHAN RAJU, MD, MBA, FACS, Index No. 100720/2014
FACHE, as President and Chief Executive Officer of :
the NEW YORK CITY HEALTH AND
HOSPITALS CORPORATION, NEW YORK CITY :
HEALTH AND HOSPITALS CORPORATION, and:
MILTON NUSTEZ, as Executive Director of
LINCOLN HOSPITAL AND MENTAL HEALTH
CENTER,

Respondents.

MEMORANDUM OF LAW IN OPPOSITION TO PETITIONER'S
MOTION FOR RELIEF FROM JUDGMENT AND IN SUPPORT OF
CROSS-MOTION FOR AN AWARD OF COSTS AND ATTORNEYS' FEES

Garfunkel Wild, P.C.
111 Great Neck Road
Great Neck, New York 11021
(516) 393-2200

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TABLE OF CONTENTS

Pace
TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
ARGUMENT 3
POINT I

THIS COURT CANNOT OVERTURN A DECISION OF THE
APPELLATE DIVISION 3
POINT II

PETITIONER DOES NOT MEET THE CRITERIA OF CPLR
5015 7
A. Petitioner Has Not Sought Relief In The Court Which
Rendered Judgment 7
B. Petitioner's Motion Is Not Based Upon Newly-Discovered
Evidence 8
C. None Of The "New" Evidence Presented Would Change
The Outcome Of This Case 9
1. The Extent Of Judicial Review In This Case Is
Limited 9
2. None Of The Exhibits Presented Show A Violation
Of PHL § 2801-b 11
D. There Is No Basis For A Finding Of Fraud 17
1. The Allegedly Withheld Documents 17
2. Redactions 19
3. Assertions Made By Lincoln In This Lawsuit 21
POINT III

THIS COURT SHOULD SANCTION PETITIONER 22
CONCLUSION 23

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TABLE OF AUTHORITIES

Page(s)

Cases

Albany Med. Ctr Hosp. v. Denis,
161 A.D.2d 1030, 557 N.Y.S.2d 523 (3d Dep't 1990) 19
Barco Auto Leasing Corp. v. Grant Thornton LLP,
298 A.D.2d 341, 751 N.Y.S.2d 204 (2d Dep't 2002) 22
Bhard-Waj v. United Health Services,
303 A.D.2d 824, 755 N.Y.S.2d 766 (3d Dep't 2003) 9, 10
Bush v. Wright,
222 A.D.2d 546, 635 N.Y.S.2d 87 (2d Dep't 1995) 20
Crea v. Newfane Inter-Community Mem. Hosp.,
224 A.D.2d 976, 637 N.Y.S.2d 843 (4th Dep't 1996) 19
Fried v. Straussman,
41 N.Y.2d 376, 393 N.Y.S.2d 334 (1977) 2, 9, 10, 23
Hoeflich v. Chemical Bank,
149 A.D.2d 341, 539 N.Y.S.2d 916 (1st Dep't 1989) 22
Jackaway v. N Dutchess Hosp.,
139 A.D.2d 496, 526 N.Y.S.2d 599 (2d Dep't 1988) 9
Levy v. Carol Mgt. Corp.,
260 A.D.2d 27, 698 N.Y.S.2d 226 (1st Dep't 1999) 22
Lilly v. Turecki,
112 A.D.2d 788, 492 N.Y.S.2d 286 (4th Dep't 1985) 19, 20
Lipp v. The Port Authority of New York and New Jersey,
17 Misc.3d 667, 847 N.Y.S.2d 405 (N.Y. Queens County 2007) 7
Little v. Hicks,
236 A.D.2d 794, 653 N.Y.S.2d 740 (4th Dep't 1997) 20
Logue v. Velez,
92 N.Y.2d 13, 677 N.Y.S.2d 6 (1998) 19
Maddaloni v. Maddaloni,
163 A.D.3d 792, 82 N.Y.S.3d 53 (2d Dep't 2018) 8

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TABLE OF AUTHORITIES
(CONTINUED)

Page(s)

Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Development, LLC,
134 A.D.3d 683, 20 N.Y.S.3d 418 (2d Dep't 2015) 4
Morrison Cohen, LLP v. Fink,
92 A.D.3d 514, 938 N.Y.S.2d 309 (1st Dep't 2012) 4
Moss v. Albany Med. Ctr. Hosp.,
61 A.D.2d 545, 403 N.Y.S.2d 568 (1st Dep't 1978) 9, 10
Nash v. Port Authority of New York and New Jersey,
22 N.Y.3d 220, 980 N.Y.S.2d 880 (2013) 5
Nyitray v. New York Athletic Club,
274 A.D.2d 326, 712 N.Y.S.2d 89 (1st Dep't 2000) 22
Parker v. St. Clare's Hosp.,
159 A.D.2d 919, 553 N.Y.S.3d 533 (3d Dep't 1990) 19
People v. Evans,
94 N.Y.2d 499, 706 N.Y.S.2d 678 (2000) 4
Sealey v. Westend Gardens Housing Development Fund Co.,
97 A.D.3d 653, 949 N.Y.S.2d 89 (2d Dep't 2012) 8
Shapiro v. Central Gen? Hosp.,
171 A.D.2d 786, 567 N.Y.S.2d 507 (2d Dep't 1991) 20
Timoney v. Newmark & Company Real Estate, Inc.,
299 A.D.2d 201, 750 N.Y.S.2d 271 (1st Dep't 2002) 22
U.S. Bank, N.A. v. Morrison,
160 A.D.3d 679, 74 N.Y.S.3d 296 (2d Dep't 2018) 4

Statutes

N.Y. EDUC. LAW § 6527(3) 19
N.Y. PUB. HEALTH LAW § 2801-b 2, 9, 10, 11
N.Y. PUB. HEALTH LAW § 2805-j 19
N.Y. PUB. HEALTH LAW § 2805-m 19

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TABLE OF AUTHORITIES
(CONTINUED)

Page(s)

Other Authorities

22 N.Y.C.R.R. 130-1.1 22,23
N.Y. C.P.L.R. 5015 passim

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PRELIMINARY STATEMENT

This motion is Petitioner Syed Aftab Karim, M.D.'s third attempt to undo a decision of

the Appellate Division that dismissed this lawsuit in its entirety. Prior to bringing this motion,

Petitioner moved in the Appellate Division for reargument, and was denied. He then sought

leave to appeal from the Court of Appeals, and was denied. He now returns to this Court,

presents the same arguments he already lost, and asks this Court to vacate a Decision and Order

entered not by this Court, but by the Appellate Division. This is a meritless request that

undermines the very fabric of our state judicial system, and cannot be allowed.

This matter concerns Petitioner's application to Lincoln Hospital to obtain clinical

privileges in neurosurgery.' Lincoln rejected this application after several reviewers provided

information that was concerning. Over the last seven years, the parties have been engaged in

seemingly endless review and re-review of this matter, including internal hospital reviews, an

administrative action, two separate lawsuits, multiple motions, and two appeals. Finally, in

2018, the Appellate Division reversed this Court's denial of summary judgment, granted

summary judgment to Lincoln, and dismissed this suit.

Thereafter, Petitioner moved to reargue of the appeal, based on purportedly "new"

documents and evidence, which he had obtained not in this lawsuit, but as part of a concurrent

federal discrimination action against Respondents. He claimed these materials had been

wrongfully withheld by Lincoln, and that their consideration would change the outcome of the

appeal. The Appellate Division denied his motion. He then went to the Court of Appeals,

Respondents in this action are Ramanathan Raju, M.D., MBA, FACS, FACHE, as President and Chief
Executive Officer of the New York City Health and Hospitals Corporation, the New York City Health and Hospitals
Corporation ("HHC"), and Milton Nunez, as Executive Director of Lincoln Hospital and Mental Health Center
(collectively, "Lincoln").
1

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seeking leave to appeal based on the same allegedly new evidence. The Court of Appeals denied

his motion.

Having exhausted his appeal options, Petitioner now has come to this Court, pursuant to

CPLR 5015(a)(2) and (3), alleging that, based on "newly discovered" and fraudulently withheld

evidence, this Court should vacate the Appellate Division's summary judgment determination.

These are the exact same documents and arguments that Petitioner presented to the Appellate

Division in his reargument motion, which was denied. There is no simpler way of stating this —

Petitioner is attempting to appeal the Appellate Division's reargument decision to this Court.

Such a motion is not permissible. The Appellate Division's decision is law of the case.

There is no legal authority for the Supreme Court to consider a matter already considered and

rejected by the Appellate Division — the Court simply doesn't have the jurisdiction.

Petitioner's motion also fails for lack of merit. A motion for relief pursuant to CPLR

5015(a)(2) must be based upon "newly-discovered evidence which, if introduced at the trial,

would probably have produced a different result." Petitioner's evidence is not "new" (as it was

already submitted to the Appellate Division), and does nothing to change the analysis of this

dispute — it is repetitive, unconvincing, and irrelevant. Petitioner's arguments ignore the

applicable standard of review, under which the Court considers only whether the hospital's

actions were "reasonably related to the institutional concerns set forth in [N.Y. Pus. HEALTH

LAW § 2801-b], whether they were based on the apparent facts as reasonably perceived by the

administrators, and whether they were assigned in good faith." Fried v. Straussman, 41 N.Y.2d

376, 383, 393 N.Y.S.2d 334 (1977). As the Court of Appeals held in Fried, it is not the province

of the court to hold a trial to determine the ultimate truth of the grounds on which a hospital has

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made its decision. Yet that is exactly what Petitioner seeks, based on post hoc materials and

affidavits that have no bearing on the information Lincoln had before it when it rendered its

decision. Petitioner's persistent litigiousness in derogation of the proper standard of review is

frivolous and vexatious.

Petitioner has also failed to demonstrate that Lincoln engaged in fraud, as required to

seek relief under CPLR 5015(a)(3). Therefore, Petitioner has not met the standards of a CPLR

5015 motion.

Petitioner's application to this Court has no reasonable basis in law or fact, and cannot be

supported in good faith. Accordingly, Lincoln respectfully requests that this motion be denied,

and that the Court order Petitioner to reimburse Lincoln for its costs and attorneys' fees incurred

in defending against this meritless application.

ARGUMENT

POINT I

THIS COURT CANNOT OVERTURN
A DECISION OF THE APPELLATE DIVISION

A trial court cannot overturn a decision of the Appellate Division. However, that is

precisely what Petitioner seeks — a re-consideration not only of the Appellate Division's denial of

summary judgment, but also, in effect, of his failed motion for reargument. Petitioner has fully

admitted that nearly all of the evidence he is presenting to this Court was previously presented to

both the Appellate Division and the Court of Appeals. Since the Appellate Division has already

considered this matter, its decision is law of the case, and cannot be relitigated.

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"The law of the case doctrine is part of a larger family of kindred concepts, which

includes res judicata (claim preclusion) and collateral estoppel (issue preclusion). These

doctrines, broadly speaking, are designed to limit relitigation of issues." People v. Evans, 94

N.Y.2d 499, 706 N.Y.S.2d 678 (2000). Specifically, "[a]n appellate court's resolution of an

issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as

well as on the appellate court. . .and operates to foreclose reexamination of the question absent a

showing of subsequent evidence or change of law." Morrison Cohen, LLP v. Fink, 92 A.D.3d

514, 515, 938 N.Y.S.2d 309 (1st Dep't 2012) (quoting Kenney v. City of New York, 74 A.D.3d

630, 630-31, 903 N.Y.S.2d 53 (1st Dep't 2010)) (emphasis added). Thus, where a party has made

a previous motion using the same arguments, a decision rejecting those arguments is law of the

case and precludes subsequent attempts to relitigate. See id.; see also Madison Acquisition

Group, LLC v. 7614 Fourth Real Estate Development, LLC, 134 A.D.3d 683, 684, 20 N.Y.S.3d

418 (2d Dep't 2015) (denying motion pursuant to CPLR 5015(a)(3), under the principle of law of

the case, when a previous motion under CPLR 5015(a)(1) raised the same arguments and was

denied); see also U.S. Bank, N.A. v. Morrison, 160 A.D.3d 679, 680, 74 N.Y.S.3d 296 (2d Dep't

2018).

Petitioner submitted nearly all of the evidence that he presents to this Court to the

Appellate Division on his motion for reargument.2 He concedes this (Mov. All, ¶ 13), and also

admits that "he referred to this post-record discovery in his motion for Leave to Appeal to the

Court of Appeals." Id, ¶ 10. Although he fashioned his Appellate Division motion as one for

2
An index of the exhibits presented to this Court as "new," and the exhibit number or other location where
they can be found in Petitioner's motion to the Appellate Division, is annexed to the Affirmation of Leonard M.
Rosenberg, dated Dec. 12, 2019 ("Rosenberg Aff") at Exhibit L. The only exhibits that were, inexplicably, not
submitted with Petitioner's reargument motion are Exhibits 20, 27, and the first page of Exhibit 12, which, as set
forth herein, in no way change the analysis of this case.
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reargument, and not renewal, the arguments Petitioner made to the Appellate Division were

nearly identical to the ones presented here, including, by way of example:

• That Lincoln withheld information concerning the South Jersey questionnaire to

mislead the Court. See Affirmation of Leonard M Rosenberg, dated Dec. 12,

2019 ("Rosenberg Aff"), Exh. G, ¶ 4(a).

• That a reviewer who recommended Petitioner with reservations, revealed in the

federal lawsuit to be Dr. Hugo Lopez, contradicted the statements made by Dr.

Melissa Schori, the individual at Lincoln who spoke with two entities that had

provided negative information about Petitioner. Id., Exh. G,114(b).

• That former Lincoln employees testified that Petitioner submitted sufficient

evidence of malpractice coverage. Id., Exh. G, ¶ 4(c).

• That sources at the University of Arkansas denied that Petitioner had issues at that

facility, but such information was in documents omitted or redacted by Lincoln.

Id., Exh. G, ¶ 4(d).

In sum, a primary basis of Petitioner's motion to the Appellate Division was that "[Nal

Lincoln/HHC not withheld material facts from the record.. .its motion for summary judgment

would have been denied." See id., Exh. G, ¶ 5. This encompasses both Petitioner's claim that

new evidence requires a different result, and his claim that Lincoln wrongfully withheld

information — the exact grounds for the instant motion.3

If Petitioner attempts to argue that his Appellate Division motion is somehow distinct from this one, he
would have no justification for failing to bring this motion earlier, and would be guilty of laches.
See Nash v. Port
5

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The Appellate Division denied this motion in its entirety. See id., Exh. I.

Because the Appellate Division's decision does not detail its review of the evidence

submitted, Petitioner simply assumes it was not considered. Mov. Aff., ¶ 10. But this is

inappropriate conjecture. Even though the Appellate Division does not articulate each and every

piece of evidence it reviewed, it does say that it rendered its decision "upon reading and filing

the papers with respect of the motion, and due deliberation having been had thereon."

Rosenberg Aff., Exh. I. Petitioner simply thinks that the Appellate Division was wrong.4

Even if the Appellate Division failed to consider the new evidence, which there is no

basis to believe, the Court still lacks jurisdiction to hear this motion. Petitioner is, in effect,

asking a trial court to overturn a decision of the Appellate Division. There is no legal authority

for such a request. Once the Appellate Division has denied reargument, a party cannot return to

a lower court because it believes the higher court missed something. The only potential avenue

for relief is a request for leave to appeal to the Court of Appeals. Petitioner submitted such a

request, and lost. See Rosenberg Aft, Exhs. J, K.

Authority of New York and New Jersey, 22 N.Y.3d 220, 225, 980 N.Y.S.2d 880 (2013) (motions made pursuant to
CPLR 5015(a)(2) and (3) "contain no limitation of time, only a requirement that the time within which the motion is
made be reasonable.") (quotation omitted). Since Petitioner had the purportedly "new" exhibits in his possession at
least a year ago, there is no excuse for his delay.
4
This is obvious from Petitioner's very posture in this motion — he states, for example, that "no evidence to
support the reason for denial... can be found anywhere in the Appellate Record," (see Mov. Aff,¶ 39), and that "the
only other showing of good faith mentioned in the Appellate Decision...was directly contradicted and denied by the
statements of those who allegedly submitted such negative information — yet the Appellate Division said there was
no dispute of fact." See Mov. Aff,,¶ 36. Notably, the Appellate Division did not say that there was no dispute of
fact, but rather simply that Lincoln's good faith had been demonstrated and Petitioner had failed to raise an issue of
fact. See Rosenberg Aff,, Exh. F, p. 2.
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POINT II

PETITIONER DOES NOT MEET THE CRITERIA OF CPLR 5015

CPLR 5015(a) provides that

[t]he court which rendered a judgment or order may relief a party
from it upon such terms as may be just...upon the ground of...2.
newly-discovered evidence which, if introduced at the trial, would
probably have produced a different result and which could not
have been discovered in time to move for a new trial under section
4404; or 3. fraud, misrepresentation, or other misconduct of an
adverse party...

Petitioner has utterly failed to meet the criteria of CPLR 5015.

A. Petitioner Has Not Sought Relief In
The Court Which Rendered Judgment

CPLR 50I5(a) states that "[t]he court which rendered a judgment or order may relieve a

party from it up on such terms as may be just."

Whether the court is exercising its inherent power or that pursuant
to the statute, it is clear that it may do so only with respect to its
own judgments...therefore, [the Supreme Court] would have no
authority to vacate a default judgment unless said judgment can be
regarded as having been rendered or granted in the [S]upreme
[C]ourt.

Lipp v. The Port Authority of New York and New Jersey, 17 Misc.3d 667, 847 N.Y.S.2d 405

(N.Y. Queens County 2007). Applying this principle, the court in Lipp held that, because the

Supreme Court had denied a motion for a default judgment, and the Appellate Division had

granted it, "[p]ursuant to CPLR 5015(a), the Appellate Division is the court to which defendant

must seek redress in order to obtain relief under CPLR 5015(a)... [The Supreme Court] is without

jurisdiction to entertain" the motion." Id. at 670. The court issued this holding regardless of the

fact that the judgment had been filed with the Supreme Court. See id. at 671 ("Jurisdiction was

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not vested in the supreme court to entertain defendant's CPLR 5015(a) motion to vacate a default

judgment entered by the Appellate Division, notwithstanding that the filing of the judgment was

with the Clerk of the Supreme Court"); but see Sealey v. Westend Gardens Housing

Development Fund Co., 97 A.D.3d 653, 949 N.Y.S.2d 89 (2d Dep't 2012) (court of original

jurisdiction can vacate prior order that has been affirmed by the Appellate Division).

B. Petitioner's Motion Is Not Based Upon Newly-Discovered Evidence

A motion seeking relief from judgment based upon new evidence must rely on evidence

that is "newly discovered." CPLR 5015(a)(2). Petitioner cannot escape the fact that the

evidence he attaches to his motion was already presented to and considered by the Appellate

Division, and was also presented to the Court of Appeals. See Rosenberg Aff., Exhs. G, J, L.

Thus, it is not "newly discovered" evidence.

The purpose of CPLR 5015(a)(2) is to afford a party the opportunity to undo a judgment

against him because some new evidence came to light after judgment was entered. See, e.g.,

Maddaloni v. Maddaloni, 163 A.D.3d 792, 82 N.Y.S.3d 53 (2d Dep't 2018) (affirming denial of

motion under CPLR 5015(a)(2) when, inter alia, the movant failed to establish that he

information could not have been discovered with due diligence at the time of trial). But

Petitioner already sought relief from the Appellate Division's order twice, via a motion to

reargue, and again by seeking leave to appeal to the Court of Appeals. It is readily apparent that

this information was available to him long before his appeals were exhausted and this Court

entered judgment dismissing the case.5 To frame this motion as a new opportunity to present

something that is not in the record is frankly indefensible. It is, instead, an attempt to do an end

5
Petitioner certainly had the option of seeking renewal with this Court prior to judgment being entered, but
chose not to do so.
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run around the Appellate Division's denial of his motion for reargument, and the Court of

Appeals' rejection of his request for leave to appeal, by taking yet another bite of the apple with

the only court left that has not yet rejected his claims — this one. This is not an appropriate or

permissible use of CPLR 5015.

C. None Of The "New" Evidence Presented
Would Change The Outcome Of This Case

Even if this Court was to consider the "new" evidence presented by Petitioner, it would

not make any difference in the outcome of this case. The information presented is repetitive,

sometimes entirely irrelevant, and largely focused, as Petitioner's arguments often are, on red

herring issues (such as concerning information received by Lincoln from South Jersey Hospital,

or Petitioner's lack of malpractice insurance) that did not form the basis of Lincoln's

determination. This is particularly the case given the narrow standard of review for claims, such

as Petitioner's, brought under PHL § 2801-b.

1. The Extent Of Judicial Review In This Case Is Limited

When reviewing a hospital's privileges determination under PHL § 2801-b, "the extent of

judicial review of the actions of a hospital in such cases is a limited one." Jackaway v. N

Dutchess Hosp., 139 A.D.2d 496, 497, 526 N.Y.S.2d 599 (2d Dep't 1988). The New York Court

of Appeals ruled that a reviewing court must limit itself to:

a determination whether the purported grounds were reasonably
related to the institutional concerns set forth in [PHL 2801-b],
whether they were based on the apparent facts as reasonably
perceived by the administrators, and whether they were assigned in
good faith.

Fried, 41 N.Y.2d at 383; see also Bhard-Waj v. United Health Services, 303 A.D.2d 824, 755

N.Y.S.2d 766 (3d Dep't 2003); Moss v. Albany Med. CM Hosp., 61 A.D.2d 545, 403 N.Y.S.2d
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568 (1st Dep't 1978). In evaluating the hospital's good faith, courts also look to see if there is

evidence of any ulterior motive. See Bhard-Waj, 303 A.D.2d at 825 ("With regard to the good

faith element, we are unable to discern any ulterior motive upon the part of the [defendants].");

Moss, 61 A.D.2d at 549 ("Petitioner can point to nothing in the record that would suggest ulterior

motives by any of the reviewers."). As stated by the Court of Appeals, it is "not the province of

the courts to decide whether the ultimate truth behind these grounds [for denial] justified the

exclusion." Fried, 41 N.Y.2d at 382-83 (emphasis added).

Nevertheless, this is exactly what Petitioner is seeking: in his own words, "a hearing to

adjudicate the denial of privileges to an otherwise well-qualified physician who submitted

abundant positive recommendations from each institution in which he worked." See Mov. Aff,

¶ 30. Indeed, much of what he presents are post hoc materials designed to, after Lincoln has

already rendered its decision, contradict the information that was before Lincoln's Medical

Executive Committee ("MEC"), which reviewed and evaluated Petitioner's application. See, e.g.

id., Exh. 16 (affidavit obtained from South Jersey to correct its purportedly erroneous answer to

Lincoln's credentialing questionnaire). He states, for example, that Lincoln "relied almost

exclusively upon the alleged negative information, which was subsequently discredited and

found to be false in discovery." See id., ¶ 9(e). In other words, he is challenging whether the

information was, in hindsight, true, not whether Lincoln appropriately relied on it; this he cannot

do. Nor do any of his materials, or any of his allegations throughout this lawsuit, demonstrate

any ulterior motive on the part of Lincoln. No matter how many affidavits and documents he

may gather now, it does not change the fact that Lincoln's decision was reasonable and made in

good faith based upon the information before it, in accordance with PHL § 2801-b. See Fried,

41 N.Y.2d at 383.

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2. None Of The Exhibits Presented
Show A Violation Of PHL 4 2801-b

The exhibits on which Petitioner relies in no way change the Appellate Division's finding

that Lincoln complied with PHL § 2801-b.

Exhibit 36 is an undated excerpt from the transcript of Mark Hartman's deposition in the

federal suit. Mr. Hartman was Lincoln's in-house counsel, and provided an affidavit

summarizing the factual background of this matter as part of Lincoln's summary judgment

motion. His testimony about his personal knowledge of the chronology set forth in his affidavit

is irrelevant to the outcome of this matter.

Exhibit 4 is an affidavit from Dr. Schori, the person who spoke with the negative

evaluators. Her affidavit was presented to this Court as part of Lincoln's motion for renewal,

and to the Appellate Division in Lincoln's appeal of same. Thus, it is not remotely "new"

evidence. In any event, it fully supports Lincoln's actions.

Exhibit 5 is a copy of a memorandum from Dr. Kaushik Das (Lincoln's Chief of

Neurosurgery) and Dr. Jay Yelon (Chair of the Department of Surgery) to Lincoln's Credentials

Committee, recommending Petitioner's appointment. The existence of this recommendation in

no way changes the outcome of this action. It is a standard form sign-off on Petitioner's

application, that was made before Dr. Schori conducted a follow-up investigation and obtained

the information that led to Lincoln's determination; therefore it has no bearing on any decisions

made thereafter. Moreover, itis not an unqualified recommendation — Dr. Das and Dr. Yelon

6
Exhibit 1 is a copy of the Appellate Division's October 16, 2018 decision concerning summary judgment.
Exhibit 2 consists of portions of the Joint Record on Appeal. For obvious reasons, neither are presented as new
evidence.
11

5502793v.9

Case Info

Judge

Andrew Borrok Track Judge’s New Case

Case No.

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Document Filed Date

December 12, 2019

Case Filing Date

July 31, 2014

County

Parties

BIRNBAUM, JULIAN R. Attorney for the Plaintiff
EISENBERG, HERBERT Attorney for the Plaintiff
HILFERTY, MICHAEL P Attorney for the Plaintiff
KAUR, HARPREET Attorney for the Defendant
MILTON NUNEZ, AS EXECUTIVE DIRECTOR OF LINCOLN HOSPITAL AND MENTAL HEALTH CENTER. Defendant
NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Defendant
RAMANATHAN RAJU, MD, MBA, FACS, FACHE, AS PRESIDENT AND CHIEF EXECUTIVE OFFICER OF THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION Defendant
ROGERS, COURTNEY A Attorney for the Defendants
ROSENBERG, LEONARD M Attorney for the Defendant
ROSENBERG, LEONARD M Attorney for the Defendants
SYED AFTAB KARIM, MD, FAANS Plaintiff
MAHIR NISAR Attorneys for Plaintiffs
KEVIN EGAN Attorney
JOAN LEVENSON Attorney
SUSAN KAYSER Attorneys for Plaintiffs
Salvatore Russo Attorney
ANTHONY COSTANTINI Attorneys for Plaintiffs
KAREN TOUAF Attorney
DANIEL GORMAN Attorney
MARK HARTMAN Attorney
DAVID CHEUNG Attorney
MAREN HARTMANN Attorney
WESLEY MARKHAM Attorney
ANTHONY MELI Attorneys for Plaintiffs

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