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FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019
FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015
NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019
INDEX NO. 607047/2015
FIÏLED : NASSATJ COUNTY CLE1(K 04 /3 0 /2018 04 : 35 PM]
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NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/27/2018
SUPREME COURT- STATE OF NEW YORK
PRESENT: HON. ANNA R. ANZALONE
Justice of the Supreme Court
x
J.F.,an Infant by GINA FAMA, as mother and
Natural guardian, and GINA FAMA and JOSEPH
J. FAMA, individually, TRIAL/IAS, PART 20
NASSAUCOUNTY
Plaintiff(s)
Index No. 607047/15
- against -
Motion Seq. No.: 001e, 2 o 'b o.
IRWINOOLDSTEIN, M.D., LONG ISLAND
OB/GYN ASSOCIATES AND SOUTH NASSAU
COMMUNITIES HOSPITAL,
Defendant(s.)
Notice of Motion (Defendant I
Goldstein),,..........,.....,......................
Affirmation in Opposition (Plaintiffs)............................................
2
Reply..........................,,,....,,.......................,,,......................3
Notice ofMotion (Defendant SNCH).............................................4
Affirmation (Plaintiffs)...................,,...............,.........................5
Reply.....,.............................................................................6
of Motion (Defendant 7
Goldstein).........................................
Notice
Affirmation in Opposition (Plaintiff)........,,.........................,,.........8
Reply.....................................................:............................
9
Goldstein and Island OB/GYN move for an order,pursuant to CFLR
Defendants Long
to produce certain discovery. Defendant South Nassau and
§3124, compelling Plaintiffs
Island have also moved, separately, for an order,
Defêndants Goldstein and Long OB/GYN,
Plaintiffs'
them judgment complaint in
pursuant to CPLR §3212, awarding summary dismissing
Plaintiffs have opposed both motions by Deféñd uts GoWtein
its against each of them.
entirety
not opposed the motion Defendant South Nassau. Based
and Island OB/GYN, but have by
Long
Defendant South Nassau is granted in itsentirety, the motion by
on thefollowing., the motion by
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Defendants Goldstein and Long island OB/GYN forsürarñary judgment is denied in itsentirety,
and the remaining motion to compel discavery isgranted to the following extent.
Factual Background:
This proceeding is a medical malpractice action brought by Plaintiffs Gina and Joseph
Fama on behalf of themselves and Plaintiff J.F.,theirinfant child, Plaintiff Gina was a 27-year-
old woman on August 2014, when she gave birth to a male child. The infantm†Mned a-severe
8,
post-traumatic brachial during the birth, also.known as erbs palsy, due to a
plexopathy injury
shoulder dystocia encountered the delivery. Defendants Goldstein and Long Island
during
OB/GYN were Plaintiff'streating doctors throughout the subject pregnancy.
Plaintiff underwent various sonograms to monitor fetal growth while she was pregnñnt I
Defendant Goldstein treated Plaintiff Gina personally, performing assessments of his
addition,
own. a normal Plaintiff Gina went intolabor around inidnight on August 7,
Fellowing pregnancy,
2014. On August at 5:40AM Plaintiffpresented at Defendant South Nassau for the birth
8, 2014,
of her second child. After Plaintiff was placed in a hospital room and a fetal
checking in,
monitoring stripwas applied.
Defendant Goldstein arrived at the hospital and visited Plaintiffwithin thirty (30) minutes
of her arrival.After a vaginal examination, Defendant Goldstein determined Plaintiff
performing
activelabor and made arrangements for Plaintiffto receive an epidural procedure. Nurses
was in
rernained in the room or throughout the duration of Defendants delivery, whereas
nearby
Defendant Goldstein went in and out of the room as he saw fit.Defendant Goldstein returned to
Plaintiff'sroom one half-hour laterto perform a second vaginal examination.
approximately
Defendant Goldstein then proceeded to break Plaintiff'swater and instructed Plaintiff the baby
could come in the next 10 minutes.
Nurse Shelters came on shift at 7AM on the of August 8. At 7:16AM, she
morning
performed a vaginal examination, Plaintiff Gina was dilated between nine and ten
noting
centimeters. this PlaintiffGina's pain level increased dramatically and she was .
During procedure,
unable to sit for an epidural. Following Nurse Shelters exam, Defendant Goldstein
still,crying
was where he performed another vaginal-examination and detennined Plaintiff was
summoned,
dilated and to push. Defendant testifiedthat at thetime of delivery he, PlaintiffGina,
fully ready
Plaintiff'shusband Nurse Shelters, and a resident and /r medical student were
Joseph, possibly
present.
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Defendant immediately began positioning Plaintiff with Nurse Shelters into the stirrups
position in preparation for delivery. Defendant Goldstein instructed PlaintiffGina to startpushing;
soon after,PlaintiffGina pushed out a portion of Plaintiff J.F 'shead. Defendant Goldstein alleges
that he then encountered a shoulder dystocia, PlaintiffGina was re-positioned in the McRoberts
position and Defendant Goldstein instructed Nurse Shelters to apply suprapubic pressure as well.
According to Nurse Shelters note on August 8, 2014, a callfor help was initiated,but within thirty
(30) seconds, the baby was delivered.
The delivery record documented Plaintiff J.F.'s Apgar scores were 8 at minute one
following the birth and 9 at fiveminutes following the birth. The infant was described as having
poor tone in the leftarm, and although could rnove the fingers, no movement of the arm from the
shoulderto the hand. Later the same day, anothernurse from Defendant South Nassau documented
that the infants a m was flaccid with poor grip. Following discharge from the hospital, Plaintiff
J.F was evaluated by a pediatric neurologist as well as a pediatric orthopedist and a course of
physical and occupational therapy was commenced.
On June 5,2015, the infant received an MRT of the cervical spine, with findings suspicious
for posttraumatic brachial plexopathy. On September 1, 2015, Plaintiff J.F. underwent a
manipulation under anesthesia of the leftelbow, an injection of 100 units of botulinum toxin into
the biceps, and the application of long arm drop out cast. On January 7, 2016, Plaintiff J.F.
underwent surgery consisting of manipulations under anesthesia in addition to left shoulder
injections of 200 unitsof botulinum toxin, equally divided between the latissimus dorsi teres major
and pectoral major muscles. Lastly, on February 3, 2017, Plaintiff J.F. underwent a third surgery
of the left arm. Plaintiff J.F. continues to receive physical and occupational therapy and the
possibility of future surgery has been discussed.
Defendant South Nasgau's Motion:
The two essential elements of a medical malpractice claim are a deviation or departure
from accepted practice and evidence that such a departure was a proximate cause of injury or
damage. (2ªd
Taylor v. Nyack Hospital, 18 AD3d 537, 795 NYS2d 317 Dept., 2005). A physician
moving for summary judgment dismissing a complaint alleging medical malpractice must
establish, prima facie, either there was no departure or that any departure was not a proximate
(2nd
cause of the injuries, Aronov v. Soukkary, 104 AD3d 623, 960 NYS2d 462 Dept., 2013)
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Defendant South Nassau has demonstrated itsentitlement to judgment as a matter of Law
through the affidavit oftheir medical expert; more specifically,Defendant South Nassau submitted
an affirmation from Dr. Prince, a board-certified OB/GYN who concludes, with sufficientmedical
that Defendant South Nassau was not the proximate cause of Plaintiff's injuries,
evidence,
neither Defendant South Nassau nor itsemployee medical staffdeviated from accepted
Moreover,
practices of the medical field in providing Plaintiff with the utrnost care. Dr, Prince affirms
Defendant South Nassau has established Plaintiff received the highest standard of care during her
delivery.
Upon arrival to Defendant South Nassau, records noted Plaintiff was checked in, given a
room of her own, examined by Dr. Cohn, and attended to by nurses for the entire duration of her
stay. The subject injury to Plaintiff LF. occurred absent the negligence of Defendant South
Nassau. Indeed, Plaintiff in itsresponding papers has conceded Defendant South Nassau should
not be liable under a theory of medical mal practice. Plaintiff further failsto argue that the
der'ivative claims asserted against this Defendant for negligent hiring and loss of services are
meritorious. Defendant South Nassau has demonstrated itsprima facie entitlement to judgment as
a matter of law and Plaintiffs have failed to proffer evidence to raise a triable issue of fact.
Therefore, Defendant South Nassau's summary judgment motion is granted in itsentiretyand the
action and any cross-claims against them are dismissed forthwith.
Defendants'
Goldstein and Long Island OB/GYN motion
Defendants Dr. Goldstein and Long Island OB/GYN have failed to proffer sufficient
evidence to substantiate their entitlement to judgment as a matter of law. These Defendants, in
support of themotion, have presented expert testimony from Dr. Price, who determined Defendant
Goldstein acted in conformity with the standards and care of similar professionals. However,
contradictory testimony by Nurse Shelters from that of Defendant Goldstein clearly indicates
triable issues of fact remain. For example, the deposition testimony of Nurse Shelters, who was
present in thedelivery room, ey essly denied any knowledge of the shoulder dystocia injury until
after the delivery. Nurse Shelters also claimed to be surprised when she noticed the Plaintiffs limp
left arm. Nurse Shelters further stated that no shoülder dystocia call was made and remembered
Defendant Goldstein after the delivery, then finallydiscovering he encountered a
questioning
shoulder dystocia.
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Defendant Dr. Goldstein's deposition claims he had informed Nurse
testimony Shelters of
the shoulder dystocia at the moment he discovered there is
it; unfortunately, no notation in the
hospital record to support this claim. Defendant Goldstein's reaction to the
emergency shoulder dystopia likewise creates a plausible inference that other medical staff
assisted inperforming these maneuvers, inconsisten t withDefendant Goldstein's testimony. Thus,
itis clear to thisCourt, as evidenced by Defendant Goldstein and Nurse Shelters vastly differing
accounts of the subject injury, that triableissues of factremain and a trialisrequired.
Further support for denial of this rnotion lies in Plaintiffs opposition, Plaintiff has
submitted an affirrnation of expert medical testimony by Dr. Gubernik, that the Plaintiff
stating
LF.'s injurieswere caused by Defendant Goldstein's application of excessive traction upon the
infai1t'shead during the delivery, as evidenced by the severity of Plaintiff'spost-traumatic brachial
plexopáthy injuries. Moreover, Dr, Gubernik affirms that the injury suffered was not caused by
the natural forces of labor, but rather was proximately caused by DefenMnts application of
excessive force in an attempt to dislodge Plaintiff LF s shoulder dystocia. Dr. Gubernik also
opined that there was evidence that Defendant Goldstein's application of excessive suprapub.ic
pressure was a departure from accepted medical practice and was theproximate cause of Plaintiff's
injuries.Thus, even assuming Defendant's satisfiedtheir burden, this competing report sufficiently
creates a triableissue of fact.
Turning next to Plaintiff's claim for loss of services, it iswell settled that loss of future
earnings isa proper item of damages, even for an infant Plaintiff. Sullivan v Locastro. 178 AD2d
(2nd parents'
523, 577 NYS2d 631 Dept., 1991), M.oreover, New York law provides rights to
recover for pecuniary loss of an infant's services. Barrette v Good Samaritan Hospital, 115 AD2d
(2nd for to have been provided prior
582, 496 NYS2d 244 Dept,, 1985). Itis not necessary services
(2nd
to the injury.Ledogar v Giordano, 122 AD2d 834, 505 NYS2d 899
Defendant Goldstein has argued that since Plaintiffs Oina and Joseph have not provided
testimony regarding specific documentary proof ofthe valueofservices lost onaccount ofPlaintiff
infants injury, their claim should be dismissed, On the other hand, Defendant has not submitted
any to support thisposition. Defendant had an opportunity during the deposition of
authority
Plaintiff Gina, as well as Plaintiff Joseph, to elicit testimony regarding thisclaim, but appear to
have failed to ask such questions. Defendants have not met their burden for dism 1 of
Thus,
this claim, and thisportion of their motion is alsodenied.
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Moving now to the claim of negligent hiring, in order to establish a cause of action based
on negligent hiring and supervision, it must be shown that the employer knew or should have
known of theemployee's propensity for the conduct which caused the injury. Jackson v New York
(2nd
UniyLDowatqwAHogja, 69 AD3d 801, 893 nYS2d 235 Dept., 2010). However, an employer
employees'
is vicariously liable for its torts,even where the offending employee's conduct was
intentiong ifthe acts were committed while the employee was acting within the scope of his or
(2"d
her employment. Carnegie v LP. Phillips, Inc.,28 AD3d 599, 815 NYS2d 107 Dept. 2006).
Here, Defendant Goldstein acknowledged through deposition testimony to be the sole
owner of Defendant Long Island OB/GYN. In addition to being the sole owner of the group,
Defendant Goldstein acted as an employee in furtherance of the Defendant Long 1sland OB/GYN's
business by attending to Plaintiff Gina throughout her pregnancy and delivery, Itis clear to this
Court thatDefendant Goldstein was acting within thescope ofhis employment for Defendant Long
Island Oi3/GYN when PlaintiffL F. sustained the alleged injury. It is ofno consequence that
Defendant Goldstein isthe principal owner of Defendant Long Island OB/GYN, Triable issues of
Plaintiffs' on the issue is
fact remain on claim for negligent hiring, and summary judgment hereby
denied at thistime.
Defendants' motion:
Goldstein and Long Island OB/GYN discovery
CPLR §3101 requires that each party provide full disclosure of all evidence material and
(2''d
necessary. Harrison v. Bayley Seton Hosp, Inc., 219 AD2d 584, 631 NYS2d 182 Dept.,
necessary" interpreted. Allen v. Crowell-
1995). The words "material and are to be liberally
Colber Pub. 21 NY2d 403, 288 NYS2d 449 (1968). Evidence which includes any facts
Co,,
on the which will assistpreparation for trialby sharpening the issues and
bearing controversy
isconsidered material and necessary. I_d.However, discovery demands cannot be
reducing delay
broad and burdensome. Rabinowitz v, St. John's, 24 AD3d 530, 808 NYS2d 280
overly
(2nd
Dept., 2005).
Defendant has on two separate occasions, that Plaintiff Gina provide
requested,
authorizations for access to social media Facebook, Instagram, Twitter and a fourth
sites,including
unidentified social media site. Plaintiff Fama has opposed the request, arguing thatDefendants
for the preservation and maintenance of Plaintiff Fama's social media Information is
requests
overbroad and will not lead to evidence that ismaterial to the defense ofthe subject
vague and any
Famas'
Plaintiff's deposition as well as Plaintiff Joseph
action. In reviewing testimony,
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Defendants have established that Plaintiff Gina's Instagram and other social media
deposition,
sitescontain information material and necessary to this proceeding; specifically, that based upon
Plaintiffsclaims for loss of enjoyment of lifeand those of sustaining a permanent disability. For
example, deposition testimony of PlaintiffJoseph indicates that he has seen pictures and at least
one video of Infant J.F. on PlaintiffGina's social media. Moreover, Plaintiff Joseph indicated
some of the photos were of family vacations. Since these photographs and video were posted
throughout the tirne period at issue in thislawsuit and directly affect the claims of damages and
permanent injury, fut1her discovery of these account may lead to evidence material and necessary
to the instantmatter.
Therefore, within thirty (30) days from the date of this order, PlaintiffGinais to submit to
chanibers for in camera inspection the records of her Facebook, Instagram, and Twitter accounts,
covering the period of August 8, 2014, through the date of this order,for allmaterial set toprivate,
only. Furthermore, for such socialmedia accounts that are not set toprivate, no in camera review
is necessary, and Plaintiff Gina shall provide authorizations, for the public portions of ber
Facebook, Instagram, and Twitter accounts covering the period of August 8, 2014, through the
(2nd
date of thisorder. See Richards v. Hertz Com 100 AD3d 728, 953 NYS2d 654 Dept., 2012).
Given the foregoing, the caption herein is amended to read as follows: "LF., an infant by
GTNA FAMA, as mother and natural guardian, and GINA FAMA and JOSPEH J. FAMA,
individually, Plaintiffs, against IRWIN GOLDSTEIN, M.D. and LONG ISLAND OB/GYN
Defendants."
ASSOCIATES,
Defendant South Nassau shall fileand servea copy of this Order with notice of entry upon
Plaintiffsand Defendants within thirty (30) days from the date of this order. Defendant South
Nassau shall also file and serve a copy of thisOrder with notice of entry upon the clerk of the
DCM TrialPart within thirty(30) days from the date of thisorder. The parties shall appear as
scheduled in the Central Jury Part on May 30, 2018, at 9:30 a.m.
This constitutes the decision and order of thisCourt.
Dated: April 24; 2018
ENTER:
ERED o
APR 27 2018
NASSAU COUNTY
COUNTY CLEERK'S OFFICE
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Affirmation in Opposition (Plaintiffs)............................................ 2 Reply..........................,,,....,,.......................,,,......................3 Notice ofMotion (Defendant SNCH).............................................4 Affirmation (Plaintiffs)...................,,...............,.........................5 Reply.....,.............................................................................6 of Motion (Defendant 7 Goldstein)......................................... Notice Affirmation in Opposition (Plaintiff)........,,.........................,,.........8 Reply.....................................................:............................ 9 Goldstein and Island OB/GYN move for an order,pursuant to CFLR Defendants Long to produce certain discovery. Defendant South Nassau and §3124, compelling Plaintiffs Island have also moved, separately, for an order, Defêndants Goldstein and Long OB/GYN, Plaintiffs' them judgment complaint in pursuant to CPLR §3212, awarding summary dismissing Plaintiffs have opposed both motions by Deféñd uts GoWtein its against each of them. entirety not opposed the motion Defendant South Nassau. Based and Island OB/GYN, but have by Long Defendant South Nassau is granted in itsentirety, the motion by on thefollowing., the motion by 1 1 of 7 3 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 CT.RRK INDEX NO. 607047/2015 {FILED: NASSAU CODNTY 04 /3 0 /2018 O4 : 35 PMl NySWRncir-- EC1- R7 ...- .., . RECETVED NYSF'EF.L_QU-70/2018 NASSAU COUNTY ,INDEX NO. 607047/2015 [FILED : CLERK 04 /27 /2 018 12 : 04 PM| NYSCEF DOC. NO. B1 RECED/ED NYSCE F : 04/27/2018 Defendants Goldstein and Long island OB/GYN forsürarñary judgment is denied in itsentirety, and the remaining motion to compel discavery isgranted to the following extent. Factual Background: This proceeding is a medical malpractice action brought by Plaintiffs Gina and Joseph Fama on behalf of themselves and Plaintiff J.F.,theirinfant child, Plaintiff Gina was a 27-year- old woman on August 2014, when she gave birth to a male child. The infantm†Mned a-severe 8, post-traumatic brachial during the birth, also.known as erbs palsy, due to a plexopathy injury shoulder dystocia encountered the delivery. Defendants Goldstein and Long Island during OB/GYN were Plaintiff'streating doctors throughout the subject pregnancy. Plaintiff underwent various sonograms to monitor fetal growth while she was pregnñnt I Defendant Goldstein treated Plaintiff Gina personally, performing assessments of his addition, own. a normal Plaintiff Gina went intolabor around inidnight on August 7, Fellowing pregnancy, 2014. On August at 5:40AM Plaintiffpresented at Defendant South Nassau for the birth 8, 2014, of her second child. After Plaintiff was placed in a hospital room and a fetal checking in, monitoring stripwas applied. Defendant Goldstein arrived at the hospital and visited Plaintiffwithin thirty (30) minutes of her arrival.After a vaginal examination, Defendant Goldstein determined Plaintiff performing activelabor and made arrangements for Plaintiffto receive an epidural procedure. Nurses was in rernained in the room or throughout the duration of Defendants delivery, whereas nearby Defendant Goldstein went in and out of the room as he saw fit.Defendant Goldstein returned to Plaintiff'sroom one half-hour laterto perform a second vaginal examination. approximately Defendant Goldstein then proceeded to break Plaintiff'swater and instructed Plaintiff the baby could come in the next 10 minutes. Nurse Shelters came on shift at 7AM on the of August 8. At 7:16AM, she morning performed a vaginal examination, Plaintiff Gina was dilated between nine and ten noting centimeters. this PlaintiffGina's pain level increased dramatically and she was . During procedure, unable to sit for an epidural. Following Nurse Shelters exam, Defendant Goldstein still,crying was where he performed another vaginal-examination and detennined Plaintiff was summoned, dilated and to push. Defendant testifiedthat at thetime of delivery he, PlaintiffGina, fully ready Plaintiff'shusband Nurse Shelters, and a resident and /r medical student were Joseph, possibly present. 2 2 of 7 4 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 FILED: NASSAU COUNTY CLERK 04 /30 /2018 04 INDEX NO. 607047/2015 :35 P$ NYScEF DOC. NO, 81 RECEIVED NYSCEF: c4/27/2018 Defendant immediately began positioning Plaintiff with Nurse Shelters into the stirrups position in preparation for delivery. Defendant Goldstein instructed PlaintiffGina to startpushing; soon after,PlaintiffGina pushed out a portion of Plaintiff J.F 'shead. Defendant Goldstein alleges that he then encountered a shoulder dystocia, PlaintiffGina was re-positioned in the McRoberts position and Defendant Goldstein instructed Nurse Shelters to apply suprapubic pressure as well. According to Nurse Shelters note on August 8, 2014, a callfor help was initiated,but within thirty (30) seconds, the baby was delivered. The delivery record documented Plaintiff J.F.'s Apgar scores were 8 at minute one following the birth and 9 at fiveminutes following the birth. The infant was described as having poor tone in the leftarm, and although could rnove the fingers, no movement of the arm from the shoulderto the hand. Later the same day, anothernurse from Defendant South Nassau documented that the infants a m was flaccid with poor grip. Following discharge from the hospital, Plaintiff J.F was evaluated by a pediatric neurologist as well as a pediatric orthopedist and a course of physical and occupational therapy was commenced. On June 5,2015, the infant received an MRT of the cervical spine, with findings suspicious for posttraumatic brachial plexopathy. On September 1, 2015, Plaintiff J.F. underwent a manipulation under anesthesia of the leftelbow, an injection of 100 units of botulinum toxin into the biceps, and the application of long arm drop out cast. On January 7, 2016, Plaintiff J.F. underwent surgery consisting of manipulations under anesthesia in addition to left shoulder injections of 200 unitsof botulinum toxin, equally divided between the latissimus dorsi teres major and pectoral major muscles. Lastly, on February 3, 2017, Plaintiff J.F. underwent a third surgery of the left arm. Plaintiff J.F. continues to receive physical and occupational therapy and the possibility of future surgery has been discussed. Defendant South Nasgau's Motion: The two essential elements of a medical malpractice claim are a deviation or departure from accepted practice and evidence that such a departure was a proximate cause of injury or damage. (2ªd Taylor v. Nyack Hospital, 18 AD3d 537, 795 NYS2d 317 Dept., 2005). A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either there was no departure or that any departure was not a proximate (2nd cause of the injuries, Aronov v. Soukkary, 104 AD3d 623, 960 NYS2d 462 Dept., 2013) 3 3 of 7 5 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 INDEX NO. 607047/2015 [FILED : NASSAU COUNTY CLERK 0 4 /3 0 / 2 018 0 4 : 3 5 PM) ESCEF__DQC. NO. ,82 RECEIVED NYSCEF: 04/30/2018 |F ILED : NASSAU COUNTY CLERK 0 4 2 7 2 INDEX NO. 607047/2015 / / 018 12 : 0 4 PM| NYSCEF DOC. NO. 81 RECEIVED NYsCEF: 04/27/2018 Defendant South Nassau has demonstrated itsentitlement to judgment as a matter of Law through the affidavit oftheir medical expert; more specifically,Defendant South Nassau submitted an affirmation from Dr. Prince, a board-certified OB/GYN who concludes, with sufficientmedical that Defendant South Nassau was not the proximate cause of Plaintiff's injuries, evidence, neither Defendant South Nassau nor itsemployee medical staffdeviated from accepted Moreover, practices of the medical field in providing Plaintiff with the utrnost care. Dr, Prince affirms Defendant South Nassau has established Plaintiff received the highest standard of care during her delivery. Upon arrival to Defendant South Nassau, records noted Plaintiff was checked in, given a room of her own, examined by Dr. Cohn, and attended to by nurses for the entire duration of her stay. The subject injury to Plaintiff LF. occurred absent the negligence of Defendant South Nassau. Indeed, Plaintiff in itsresponding papers has conceded Defendant South Nassau should not be liable under a theory of medical mal practice. Plaintiff further failsto argue that the der'ivative claims asserted against this Defendant for negligent hiring and loss of services are meritorious. Defendant South Nassau has demonstrated itsprima facie entitlement to judgment as a matter of law and Plaintiffs have failed to proffer evidence to raise a triable issue of fact. Therefore, Defendant South Nassau's summary judgment motion is granted in itsentiretyand the action and any cross-claims against them are dismissed forthwith. Defendants' Goldstein and Long Island OB/GYN motion Defendants Dr. Goldstein and Long Island OB/GYN have failed to proffer sufficient evidence to substantiate their entitlement to judgment as a matter of law. These Defendants, in support of themotion, have presented expert testimony from Dr. Price, who determined Defendant Goldstein acted in conformity with the standards and care of similar professionals. However, contradictory testimony by Nurse Shelters from that of Defendant Goldstein clearly indicates triable issues of fact remain. For example, the deposition testimony of Nurse Shelters, who was present in thedelivery room, ey essly denied any knowledge of the shoulder dystocia injury until after the delivery. Nurse Shelters also claimed to be surprised when she noticed the Plaintiffs limp left arm. Nurse Shelters further stated that no shoülder dystocia call was made and remembered Defendant Goldstein after the delivery, then finallydiscovering he encountered a questioning shoulder dystocia. 4 4 of 7 6 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 INDEX NO. 607047/2015 FILED : NASSAU COUNTY CLERK 047307103 8 04 : 3 5 PM) --- NAS COUNTY CLERK 04 /2'/ /T(Ï PMi NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/27/2018 Defendant Dr. Goldstein's deposition claims he had informed Nurse testimony Shelters of the shoulder dystocia at the moment he discovered there is it; unfortunately, no notation in the hospital record to support this claim. Defendant Goldstein's reaction to the emergency shoulder dystopia likewise creates a plausible inference that other medical staff assisted inperforming these maneuvers, inconsisten t withDefendant Goldstein's testimony. Thus, itis clear to thisCourt, as evidenced by Defendant Goldstein and Nurse Shelters vastly differing accounts of the subject injury, that triableissues of factremain and a trialisrequired. Further support for denial of this rnotion lies in Plaintiffs opposition, Plaintiff has submitted an affirrnation of expert medical testimony by Dr. Gubernik, that the Plaintiff stating LF.'s injurieswere caused by Defendant Goldstein's application of excessive traction upon the infai1t'shead during the delivery, as evidenced by the severity of Plaintiff'spost-traumatic brachial plexopáthy injuries. Moreover, Dr, Gubernik affirms that the injury suffered was not caused by the natural forces of labor, but rather was proximately caused by DefenMnts application of excessive force in an attempt to dislodge Plaintiff LF s shoulder dystocia. Dr. Gubernik also opined that there was evidence that Defendant Goldstein's application of excessive suprapub.ic pressure was a departure from accepted medical practice and was theproximate cause of Plaintiff's injuries.Thus, even assuming Defendant's satisfiedtheir burden, this competing report sufficiently creates a triableissue of fact. Turning next to Plaintiff's claim for loss of services, it iswell settled that loss of future earnings isa proper item of damages, even for an infant Plaintiff. Sullivan v Locastro. 178 AD2d (2nd parents' 523, 577 NYS2d 631 Dept., 1991), M.oreover, New York law provides rights to recover for pecuniary loss of an infant's services. Barrette v Good Samaritan Hospital, 115 AD2d (2nd for to have been provided prior 582, 496 NYS2d 244 Dept,, 1985). Itis not necessary services (2nd to the injury.Ledogar v Giordano, 122 AD2d 834, 505 NYS2d 899 Defendant Goldstein has argued that since Plaintiffs Oina and Joseph have not provided testimony regarding specific documentary proof ofthe valueofservices lost onaccount ofPlaintiff infants injury, their claim should be dismissed, On the other hand, Defendant has not submitted any to support thisposition. Defendant had an opportunity during the deposition of authority Plaintiff Gina, as well as Plaintiff Joseph, to elicit testimony regarding thisclaim, but appear to have failed to ask such questions. Defendants have not met their burden for dism 1 of Thus, this claim, and thisportion of their motion is alsodenied. 5 5 of 7 7 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 INDEX NO. 607047/2015 (F_ILED : NASSAU COUNTY CLERK 04 /30/2 018 IT4: 35 PM] mmrmn nnr' NO Ro RECEXVED NYSCEF: o4/30/201B msx - [FILED: NASSAU COUNTY CLERK 27/2 12 wo, ou /ur// auld 04/ 018 : 0 4 PM| NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 04/27/2018 Moving now to the claim of negligent hiring, in order to establish a cause of action based on negligent hiring and supervision, it must be shown that the employer knew or should have known of theemployee's propensity for the conduct which caused the injury. Jackson v New York (2nd UniyLDowatqwAHogja, 69 AD3d 801, 893 nYS2d 235 Dept., 2010). However, an employer employees' is vicariously liable for its torts,even where the offending employee's conduct was intentiong ifthe acts were committed while the employee was acting within the scope of his or (2"d her employment. Carnegie v LP. Phillips, Inc.,28 AD3d 599, 815 NYS2d 107 Dept. 2006). Here, Defendant Goldstein acknowledged through deposition testimony to be the sole owner of Defendant Long Island OB/GYN. In addition to being the sole owner of the group, Defendant Goldstein acted as an employee in furtherance of the Defendant Long 1sland OB/GYN's business by attending to Plaintiff Gina throughout her pregnancy and delivery, Itis clear to this Court thatDefendant Goldstein was acting within thescope ofhis employment for Defendant Long Island Oi3/GYN when PlaintiffL F. sustained the alleged injury. It is ofno consequence that Defendant Goldstein isthe principal owner of Defendant Long Island OB/GYN, Triable issues of Plaintiffs' on the issue is fact remain on claim for negligent hiring, and summary judgment hereby denied at thistime. Defendants' motion: Goldstein and Long Island OB/GYN discovery CPLR §3101 requires that each party provide full disclosure of all evidence material and (2''d necessary. Harrison v. Bayley Seton Hosp, Inc., 219 AD2d 584, 631 NYS2d 182 Dept., necessary" interpreted. Allen v. Crowell- 1995). The words "material and are to be liberally Colber Pub. 21 NY2d 403, 288 NYS2d 449 (1968). Evidence which includes any facts Co,, on the which will assistpreparation for trialby sharpening the issues and bearing controversy isconsidered material and necessary. I_d.However, discovery demands cannot be reducing delay broad and burdensome. Rabinowitz v, St. John's, 24 AD3d 530, 808 NYS2d 280 overly (2nd Dept., 2005). Defendant has on two separate occasions, that Plaintiff Gina provide requested, authorizations for access to social media Facebook, Instagram, Twitter and a fourth sites,including unidentified social media site. Plaintiff Fama has opposed the request, arguing thatDefendants for the preservation and maintenance of Plaintiff Fama's social media Information is requests overbroad and will not lead to evidence that ismaterial to the defense ofthe subject vague and any Famas' Plaintiff's deposition as well as Plaintiff Joseph action. In reviewing testimony, 6 of 7 8 of 11 FILED: NASSAU COUNTY CLERK 03/05/2019 11:34 AM INDEX NO. 607047/2015 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 03/05/2019 INDEX NO. 607047/2015 (FILED : NASSAU COUNTY CLERK 04 / 30/2018 0 4 : 35 PM) DOr' 82 RECETVED NYRnEF: 04/30/2018 lESCEF NO. INDEX NO, 607047/2015 NYSCEF DOC. NO, 81 RECEIVED NYSCEF: 04/27/2018 Defendants have established that Plaintiff Gina's Instagram and other social media deposition, sitescontain information material and necessary to this proceeding; specifically, that based upon Plaintiffsclaims for loss of enjoyment of lifeand those of sustaining a permanent disability. For example, deposition testimony of PlaintiffJoseph indicates that he has seen pictures and at least one video of Infant J.F. on PlaintiffGina's social media. Moreover, Plaintiff Joseph indicated some of the photos were of family vacations. Since these photographs and video were posted throughout the tirne period at issue in thislawsuit and directly affect the claims of damages and permanent injury, fut1her discovery of these account may lead to evidence material and necessary to the instantmatter. Therefore, within thirty (30) days from the date of this order, PlaintiffGinais to submit to chanibers for in camera inspection the records of her Facebook, Instagram, and Twitter accounts, covering the period of August 8, 2014, through the date of this order,for allmaterial set toprivate, only. Furthermore, for such socialmedia accounts that are not set toprivate, no in camera review is necessary, and Plaintiff Gina shall provide authorizations, for the public portions of ber Facebook, Instagram, and Twitter accounts covering the period of August 8, 2014, through the (2nd date of thisorder. See Richards v. Hertz Com 100 AD3d 728, 953 NYS2d 654 Dept., 2012). Given the foregoing, the caption herein is amended to read as follows: "LF., an infant by GTNA FAMA, as mother and natural guardian, and GINA FAMA and JOSPEH J. FAMA, individually, Plaintiffs, against IRWIN GOLDSTEIN, M.D. and LONG ISLAND OB/GYN Defendants." ASSOCIATES, Defendant South Nassau shall fileand servea copy of this Order with notice of entry upon Plaintiffsand Defendants within thirty (30) days from the date of this order. Defendant South Nassau shall also file and serve a copy of thisOrder with notice of entry upon the clerk of the DCM TrialPart within thirty(30) days from the date of thisorder. The parties shall appear as scheduled in the Central Jury Part on May 30, 2018, at 9:30 a.m. This constitutes the decision and order of thisCourt. Dated: April 24; 2018 ENTER: ERED o APR 27 2018 NASSAU COUNTY COUNTY CLEERK'S OFFICE 7 of 7 9 of 11