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FILED: KINGS COUNTY CLERK 11/15/2021 12:23 PM INDEX NO. 508009/2013
NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/15/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
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NATHANIEL GRAYTON, an Infant, by his mother
and natural guardian, SHERRI SKIDMORE,
AFFIRMATION
Plaintiffs, IN SUPPORT
– against –
VASUDHA VISWANATHAN, M.D,. CALIXTO
CAZONO, M.D., RAJENDRA BHAYANI, M.D.,
FERNANDO GINEBRA, M.D., SONY LOISEAU, M.D.,
And WYCKOFF HEIGHTS MEDICAL CENTER
Defendants.
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MATTHEW REISMAN, an attorney duly admitted to practice law before the courts of
the State of New York, hereby affirms under penalties of perjury, upon information and belief, as
follows:
1. I am an associate attorney of the firm of Arshack, Hajek & Lehrman, PLLC,
attorneys for defendants SONY LOISEAU, M.D. and WYCKOFF HEIGHTS MEDICAL
CENTER (hereinafter, “WYCKOFF”) herein, and I am fully familiar with the facts and
circumstances heretofore had therein.
2. I submit this Affirmation in support of WYCKOFF’s motion for an order granting
WYCKOFF partial summary judgment pursuant to CPLR § 3212 and for such other and further
relief as this Court deems just and proper.
3. More specifically, in light of the fact that co-defendants RAJENDRA BHAYANI,
M.D. (hereinafter, “DR. BHAYANI”), CALIXTO CAZANO, M.D. (hereinafter, “DR.
CAZANO”), and FERNANDO GINEBRA, M.D. (hereinafter, “DR. GINEBRA”) have filed
motions for summary judgment, WYCKOFF respectfully submits that should this Court grant the
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codefendants’ pending motions, then, likewise, WYCKOFF should be granted partial summary
judgment as to any actions attributable to the prevailing movants as a matter of law.
4. WYCKOFF incorporates by reference and makes a part hereof all of the facts,
procedural history, arguments, legal authorities and evidence submitted in the Affirmation of
Ginette M. Portera, Esq. in support of DR. BHAYANI’s motion for summary judgment, dated
October 5, 2021, and all Exhibits attached thereto, as well as all of the facts, procedural history,
arguments, legal authorities and evidence submitted in the Affirmation of Edward R. Nicholson,
Esq. in support of DR. CAZANO and DR. GINEBRA’s motion for summary judgment, dated
October 5, 2021, and all Exhibits attached thereto. In the interest of conservation, these documents
shall not be duplicated and annexed separately hereto.
5. It is respectfully submitted that should the Court determine that DR. BHAYANI,
DR. CAZANO, and / or DR. GINEBRA did not deviate from the accepted standards of medical
practice, the same relief should be accorded to movant WYCKOFF for all actions and omissions
attributable to DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA.
6. Specifically, if this Court rules that DR. BHAYANI, DR. CAZANO, and / or DR.
GINEBRA are not liable for the acts and omissions alleged in the Complaint, then it is axiomatic
that WYCKOFF cannot be held vicariously liable for those acts and omissions. It goes without
saying that “a claim of vicarious liability cannot stand when there is no primary liability upon
which such a claim of vicarious liability might rest.” Pereira v. St. Joseph’s Cemetery, 54 A.D.3d
835, 837 (2d Dept 2008). Moreover, it has been explicitly held that hospitals cannot be held
vicariously liable for the acts or omissions of agents who have been released from a case. Magriz
v. St. Barnabas Hosp., 43 A.D.3d 331, 332 (1st Dept 2007). Thus, as a matter of law, should
summary judgment be granted to DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA, it is
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respectfully submitted that summary judgment must likewise issue to WYCKOFF for any acts
and omissions attributable to them.
7. No previous application has been made by this defendant for the requested relief.
According to the Court of Appeals in Brill v. City of New York, Motions for Summary Judgment
may be filed after the deadline has passed when there is a “satisfactory explanation for the
untimeliness.” 2 N.Y.3d 648, 652 (2004). In the instant case, WYCKOFF is a defendant hospital
whose liability is limited to vicarious “Mduba” exposure, and whose right to relief is therefore
predicated on the dismissal of the claims against DR. BHAYANI, DR. CAZANO, and DR.
GINEBRA, the alleged active tortfeasors. As a result, the present motion could not be filed until
after the filing of codefendants’ Motions for Summary Judgment. Additionally, it is submitted
that the plaintiff is not prejudiced by the late filing of the present Motion, as the plaintiff has not
yet opposed DR. BHAYANI, DR. CAZANO, or DR. GINEBRA’s Motions.
WHEREFORE, for the reasons set forth above and those incorporated by reference herein,
WYCKOFF prays that this Court grant the instant motion for partial summary judgment and grant
such other and further relief as this Court deems just and proper.
Dated: New York, New York
November 15, 2021
Matthew Reisman
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ATTORNEY WORD COUNT CERTIFICATION
Pursuant to the Uniform Civil Rules for the Supreme Court, Rule 202.8-b (Length of
Papers), the undersigned an attorney admitted to practice in the Courts of New York State,
certifies that, upon information and belief, reasonable inquiry, and the word count of the word-
processing system used to prepare the within document, said document contains 694 words. The
undersigned attorney further certifies that the foregoing document complies with the word count
limit of Rule 202.8-b.
Dated: New York, New York
November 15, 2021
Matthew Reisman
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Preview
FILED: KINGS COUNTY CLERK 11/15/2021 12:23 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/15/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS -----------------------------------------------------------------------X Index No.: 508009/2013 NATHANIEL GRAYTON, an Infant, by his mother and natural guardian, SHERRI SKIDMORE, AFFIRMATION Plaintiffs, IN SUPPORT – against – VASUDHA VISWANATHAN, M.D,. CALIXTO CAZONO, M.D., RAJENDRA BHAYANI, M.D., FERNANDO GINEBRA, M.D., SONY LOISEAU, M.D., And WYCKOFF HEIGHTS MEDICAL CENTER Defendants. -----------------------------------------------------------------------X MATTHEW REISMAN, an attorney duly admitted to practice law before the courts of the State of New York, hereby affirms under penalties of perjury, upon information and belief, as follows: 1. I am an associate attorney of the firm of Arshack, Hajek & Lehrman, PLLC, attorneys for defendants SONY LOISEAU, M.D. and WYCKOFF HEIGHTS MEDICAL CENTER (hereinafter, “WYCKOFF”) herein, and I am fully familiar with the facts and circumstances heretofore had therein. 2. I submit this Affirmation in support of WYCKOFF’s motion for an order granting WYCKOFF partial summary judgment pursuant to CPLR § 3212 and for such other and further relief as this Court deems just and proper. 3. More specifically, in light of the fact that co-defendants RAJENDRA BHAYANI, M.D. (hereinafter, “DR. BHAYANI”), CALIXTO CAZANO, M.D. (hereinafter, “DR. CAZANO”), and FERNANDO GINEBRA, M.D. (hereinafter, “DR. GINEBRA”) have filed motions for summary judgment, WYCKOFF respectfully submits that should this Court grant the 1 of 4 FILED: KINGS COUNTY CLERK 11/15/2021 12:23 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/15/2021 codefendants’ pending motions, then, likewise, WYCKOFF should be granted partial summary judgment as to any actions attributable to the prevailing movants as a matter of law. 4. WYCKOFF incorporates by reference and makes a part hereof all of the facts, procedural history, arguments, legal authorities and evidence submitted in the Affirmation of Ginette M. Portera, Esq. in support of DR. BHAYANI’s motion for summary judgment, dated October 5, 2021, and all Exhibits attached thereto, as well as all of the facts, procedural history, arguments, legal authorities and evidence submitted in the Affirmation of Edward R. Nicholson, Esq. in support of DR. CAZANO and DR. GINEBRA’s motion for summary judgment, dated October 5, 2021, and all Exhibits attached thereto. In the interest of conservation, these documents shall not be duplicated and annexed separately hereto. 5. It is respectfully submitted that should the Court determine that DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA did not deviate from the accepted standards of medical practice, the same relief should be accorded to movant WYCKOFF for all actions and omissions attributable to DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA. 6. Specifically, if this Court rules that DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA are not liable for the acts and omissions alleged in the Complaint, then it is axiomatic that WYCKOFF cannot be held vicariously liable for those acts and omissions. It goes without saying that “a claim of vicarious liability cannot stand when there is no primary liability upon which such a claim of vicarious liability might rest.” Pereira v. St. Joseph’s Cemetery, 54 A.D.3d 835, 837 (2d Dept 2008). Moreover, it has been explicitly held that hospitals cannot be held vicariously liable for the acts or omissions of agents who have been released from a case. Magriz v. St. Barnabas Hosp., 43 A.D.3d 331, 332 (1st Dept 2007). Thus, as a matter of law, should summary judgment be granted to DR. BHAYANI, DR. CAZANO, and / or DR. GINEBRA, it is 2 of 4 FILED: KINGS COUNTY CLERK 11/15/2021 12:23 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/15/2021 respectfully submitted that summary judgment must likewise issue to WYCKOFF for any acts and omissions attributable to them. 7. No previous application has been made by this defendant for the requested relief. According to the Court of Appeals in Brill v. City of New York, Motions for Summary Judgment may be filed after the deadline has passed when there is a “satisfactory explanation for the untimeliness.” 2 N.Y.3d 648, 652 (2004). In the instant case, WYCKOFF is a defendant hospital whose liability is limited to vicarious “Mduba” exposure, and whose right to relief is therefore predicated on the dismissal of the claims against DR. BHAYANI, DR. CAZANO, and DR. GINEBRA, the alleged active tortfeasors. As a result, the present motion could not be filed until after the filing of codefendants’ Motions for Summary Judgment. Additionally, it is submitted that the plaintiff is not prejudiced by the late filing of the present Motion, as the plaintiff has not yet opposed DR. BHAYANI, DR. CAZANO, or DR. GINEBRA’s Motions. WHEREFORE, for the reasons set forth above and those incorporated by reference herein, WYCKOFF prays that this Court grant the instant motion for partial summary judgment and grant such other and further relief as this Court deems just and proper. Dated: New York, New York November 15, 2021 Matthew Reisman 3 of 4 FILED: KINGS COUNTY CLERK 11/15/2021 12:23 PM INDEX NO. 508009/2013 NYSCEF DOC. NO. 193 RECEIVED NYSCEF: 11/15/2021 ATTORNEY WORD COUNT CERTIFICATION Pursuant to the Uniform Civil Rules for the Supreme Court, Rule 202.8-b (Length of Papers), the undersigned an attorney admitted to practice in the Courts of New York State, certifies that, upon information and belief, reasonable inquiry, and the word count of the word- processing system used to prepare the within document, said document contains 694 words. The undersigned attorney further certifies that the foregoing document complies with the word count limit of Rule 202.8-b. Dated: New York, New York November 15, 2021 Matthew Reisman 4 of 4