Preview
FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018
NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
--------------------------------------------------------------------------X
THERESA ROBINSON and DEREK ROBINSON, Index No.:
717964/2018
Plaintiffs,
AFFIRMATION
- against - IN SUPPORT OF
PLAINTIFFS’ CROSS-
NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MOTION
MEDICAL CENTER, DEEPAK NANDA, M.D., P.C.,
DEEPAK NANDA, M.D., and EMMANUEL M. PAFOS,
M.D.,
Defendants.
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JAMES S. PAGLINAWAN, ESQ., an attorney admitted to practice before the Courts of this
State, affirms the truth of the following under the penalty of perjury:
1. I am an attorney at THE PAGLINAWAN FIRM, P.C., attorneys for plaintiffs
Theresa Robinson and Derek Robinson (“Plaintiffs”) and as such I am fully familiar with the facts
and circumstances of this action based upon a review of the case file and the investigation materials
contained therein. This affirmation is submitted in support of Plaintiffs’ Cross-Motion, which seeks
an order: (a) pursuant to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021,
dismissing the medical malpractice and loss of consortium claims against defendant LONG ISLAND
JEWISH MEDICAL CENTER (“LIJMC”) based on statute of limitations; (b) upon reargument, denying
the summary judgment made on behalf of defendant LIJMC as to the aforementioned claims; and (c) for
such other, further and different relief as to this Court duly seems just and proper. For the reasons stated
below, Plaintiffs’ Cross-Motion should be granted.
2. The motion for summary judgment made on behalf of defendant LIJMC is marked as
motion sequence number 5, with NYSCEF DOC. NOS. 120-147, and 165. Plaintiffs’ opposition to the
motion includes NYSCEF DOC. NOS. 156-158.
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3. “Motions for reargument are addressed to the sound discretion of the court which
decided the prior motion and may be granted upon showing that the court overlooked or
misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier
decision.” Mazzei v. Licciardi, 47 A.D.3d 774, 774 (2d Dep’t 2008). Respectfully, this Court
overlooked and misapprehended the relevant facts and law in deciding the motion for summary
judgment made on behalf of defendant LONG ISLAND JEWISH MEDICAL CENTER.
POINT I
THERE IS NO DISPUTE HERE THAT DEFENDANTS NANDA AND PAFOS WERE
EMPLOYEES OF DEFENDANT LIMJC ON APRIL 12, 2016.
4. In its decision, this Court held found: “There is no evidence that either Dr. Nanda or
Dr. Pafos acted as employees of LIJMC during Ms. Robinson’s labor and delivery, or during the
follow-up post-partum office visits on April 28, 2016 and May 23, 2016.” NYSCEF DOC. 166, at p.
4. In that vein, this Court held that: “Plaintiffs, in opposition, have failed to raise a question of fact
as to whether the statute of limitations was tolled pursuant to the continuous treatment doctrine.”
NYSCEF DOC. 166, at p. 4.
5. However, as Plaintiffs argued in their papers, there is no dispute here that defendant
Nanda was an employee of LIJMC on April 12, 2016. During his deposition, defendant Nanda
testified:
Q. In 2016, who were you employed by?
A. I was employed by Long Island Jewish Hospital, which is a part of
Northwell Health system. At that time, it was called Northwell Health.
NYSCEF DOC. NO. 139, at p. 14.
6. However, as Plaintiffs also argued in their papers, there is no dispute here that
defendant Pafos was similarly an employee of LIJMC on April 12, 2016. To be sure, when being
questioned by counsel for defendant LIJMC, defendant Pafos testified:
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Q. Dr. Pafos, correct? My name is Yanique Burke. I’m from Aaronson,
Rappaport, Feinstein, and Deutsch. I represent LIJ Medical Center and Northwell
Health, Inc. I’m just going to ask you a few questions, just to confirm certain
information.
Back in April of 2016, were you employed by Long Island Jewish Medical
Center?
A. I think I was.
Q. Okay. And do you recall receiving a paycheck from Long Island Jewish
Medical Center at that time?
A. Yes, when I was employed I was being paid by the hospital.
NYSCEF DOC. NO. 140, at p. 103.
7. Here, there are material issues of fact as to whether the continuous treatment
doctrine tolled the statute of limitations on the claims against defendant LIJMC. First, defendant
Pafos does not dispute that the claims against him were filed timely because he did not move on
this issue. Additionally, defendant Pafos was an employee of defendant LIJMC at the time of the
alleged malpractice. NYSCEF DOC. NO. 115, at p. 103. Furthermore, Ms. Robinson sustained
the main injury at issue here – her urinary bladder injury -- at LIJMC. She then required follow-
up care with defendant Nanda solely because of that specific injury. As important, Ms. Robinson
began her prenatal care at LIJMC and was transferred over to defendant Deepak Nanda, M.D.,
P.C., where defendant Pafos started seeing her. As such, there sufficient nexus between the care
provided that defendants Pafos and LIJMC created a material issue of fact on the issue of
continuous treatment.
8. Thus, here, there are material issues of fact as to the applicability of the
continuous treatment doctrine, making summary judgment improper on this issue.
POINT II
CPLR 203(b) DOES NOT APPLY ONLY WHERE A PLAINTIFF SEEKS TO NAME AN
ADDITONAL DEFENDANT AFTER THE EXPIRATION OF
THE STATUTE OF LIMITATIONS.
9. In its decision, this Court also found that Plaintiffs’ reliance upon CPLR 203(b) is
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misplaced, reasoning: “CPLR 203(b) by its terms, only applies where a plaintiff seeks to name an
additional defendant after the expiration of the statute of limitations.” NYSCEF DOC. 166, at p. 5.
As such, this Court held: “As the within action was commenced against all of the defendants on
November 22, 2018, the united in interest and relation-back doctrines are inapplicable here.”
NYSCEF DOC. 166, at p. 5.
10. However, the Appellate Division, Second Department, in Xavier v. RY Management
Company, held that the applicability of the “relation-back doctrine” is not limited to adding
defendants in a complaint. 45 A.D.3d 677, 678-9 (2d Dep’t 2007). There, the court held that it
similarly applies to “separate actions which are ultimately consolidated.” Id, at 678. There, the court
also held:
Parties are united when their interests in the subject matter is such that they will
stand or fall together with respect to the plaintiff’s claim. In a negligence action, “the
defenses available to two defendants will be identical, and thus their interests will be
united, only where one is vicariously liable for the acts of the other.”
Id., at 67. In DeLuca v. Baybridge at Bayside Condominium I, the Appellate Division, Second
Department, similarly held:
Although not preserved for appellate review, we note that pursuant to CPLR 203(c)
the relation-back doctrine applies to claims "interposed against the defendant or a
co-defendant united in interest with such defendant when the action is commenced."
Although Century and the Baybridge defendants were sued in two separate actions,
the relation-back doctrine may be applied here when the actions are consolidated
Since the prior action has been reinstated, these two actions can now be consolidated
in the Supreme Court, Kings County.
5 A.D.3d 533, 535 (2d Dep’t 2004) (citations omitted). Notably, the Appellate Division, Second
Department, in Matter of Parker v. Port Authority of New York New Jersey, noted: “A unity of
interest between codefendants has been found to exist based upon a number of legal relationships
including: among members of a partnership; an insured and beneficiaries; or, as here, where the
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parties share a master-servant or employer-employee relationship.” 113 A.D.2d 763, 767 (2d Dep’t
1985) (citations omitted).
11. Here, defendants Pafos and Nanda and defendant LIJMC are united in interest
because they had an employee-employer relationship at the time of Ms. Robinson’s treatment at
LIJMC. As such, vicarious liability exists between these defendants. Additionally, in support of
defendant Pafos’ summary judgment motion is the same exact medical affirmation that defendant
LIJMC submitted, showing even further that they will stand and fall together with respect to Ms.
Robinson’s claims.
12. Similarly, here, defendant Pafos and defendant Nanda are united in interest because,
by their own admissions, they treated Ms. Robinson jointly regarding the pregnancy in question.
Additionally, in support of defendant Pafos’ summary judgment motion is the same exact medical
affirmation that defendant Nanda submitted, showing even further that they will stand and fall
together with respect to Ms. Robinson’s claims.
13. The Court of Appeals, in Buran v. Coupal, held that the following three conditions
must be satisfied in order for claims against one defendant to relate back to claims asserted against
another defendant: (1) that both claims arose out of same conduct, transaction or occurrence; (2) that
the new party is “united in interest” with original defendant, and by reason of that relationship can
be charged with such notice of institution of action that he will not be prejudiced in maintaining
action on merits; and (3) that the new party knew or should have known that, but for mistake by
plaintiff as to identity of proper parties, the action would have been brought against new party as
well. 87 N.Y.2d 173, 176 (1995). The Buran Court also held that a plaintiff need not show
“excusable mistake” and that it is sufficient that a plaintiff shows that the new party knew or should
have known that, but for a mistake concerning identity of the proper parties, the action would have
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been brought against the party. Id. at 180-181.
14. Assuming that this Court would apply the Buran standard, which has been used in
cases where the plaintiff is seeking to add a defendant, its requirements are satisfied here. First, the
claims against defendants Pafos and Nanda and LIJMC arose out of the same transaction: the
negligent labor and delivery care provided to her at LIJMC. Second, defendant LIJMC is united in
interest with defendants Nanda and Pafos. Finally, given the facts of this case as reflected in the
medical records, defendant LIMC knew or should have known that the action would have been
brought against it when the actions against defendants Pafos and Nanda were commenced.
15. It worth noting that, in DeLuca, two years after the statute of limitations had passed
as against the defendant in the second action. 5 A.D.3d at 534. Nevertheless, there, the Appellate
Division, Second Department, applying CPLR 203(b), found that the second action was timely
because it related back to the first action. 5 A.D.3d at 535. Here, had Plaintiffs named defendant
LIJMC in a second action one year after commencing this action, this Court would presumably hold
that CPLR 203(b) would apply. However, if Plaintiffs did exactly that, defendant LIJMC would
have learned of the action against them one year and one month after the statute of limitations had
passed. In comparison, here, defendant LIJMC learned of Plaintiffs’ action against it merely one
month after the statute of limitations had passed. Therefore. this Court’s refusal to apply the CPLR
203(b) in this case – even when the Appellate Division, Second Department has applied it in cases
involving consolidation of actions – makes no sense from a policy standpoint.
16. Thus, the claims LIJMC were timely filed pursuant to CPLR 203(c), making
summary judgment improper on the issue of statute of limitations.
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POINT III.
UPON REARGUMENT, THIS COURT SHOULD DENY THE SUMMARY JUDGMENT MADE ON
BEHALF OF DEFENDANT LIJMC AS TO THE MEDICAL MALPRACTICE CLAIM.
17. The Appellate Division, Second Department, has held that summary judgment is a
drastic remedy that should not be invoked where there is any doubt as to the existence of a triable
issue of fact. Hantz v. Fishman, 155 A.D.2d 415, 415 (2d Dep’t 1989). Further, the Appellate
Division, Second Department, has held that the Court’s function in deciding the summary judgment
motion is issue finding, not issue determination, and the identification of unresolved fact issues
should result in the denial of the motion. Id. Additionally, the Appellate Division, Second
Department, has held, on a motion for summary judgment the court should accept as true the
opposing party's evidence and any evidence of the movant which favors the opposing party. Id.
Equally important, the Court of Appeals has held: “It is not the function of a court deciding a
summary judgment motion to make credibility determinations or findings of fact, but rather to
identify material issues of fact (or point to the lack thereof).” Vega v. Restani Constr. Corp., 18
N.Y.3d 499, 505 (2012). Finally, the Appellate Division, Second Department, has held: “When
experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution.”
Shields v. Baktidy, 11 A.D.3d 671, 672 (2d Dep’t 2004).
18. Clearly, here, there are plainly factual issues unresolved, where the respective
parties’ experts offer diametrically opposing statements on the issue of whether Defendants
departed from good and accepted standards of medical care and whether those departures
constituted a proximate cause of Plaintiffs’ pain and suffering. Thus, in deciding the branch of the
motion seeking summary judgment made on behalf of defendant LIJMC as to Plaintiffs’ cause of
action for medical malpractice should be denied.
19. Therefore, this Court should grant Plaintiffs’ Cross-Motion, which seeks an order
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pursuant to CPLR 2221, upon reargument, denying the summary judgment made on behalf of
defendant LIJMC as to the aforementioned claim.
20. No prior application has been made for the same relief sought by this Motion.
WHEREFORE, Plaintiffs respectfully request that their cross-motion be granted in its
entirety and that this Court grant such other and further relief as to this Court seems just and proper.
Dated: February 4, 2022
Forest Hills, New York
THE PAGLINAWAN FIRM, P.C.
Attorneys for plaintiffs THERESA ROBINSON
and DEREK ROBINSON
118-21 Queens Blvd., Suite 501
Forest Hills, NY 11375
(718) 576-2544
______________________________
BY: JAMES S. PAGLINAWAN, ESQ.
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Preview
FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------------X THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiffs, AFFIRMATION - against - IN SUPPORT OF PLAINTIFFS’ CROSS- NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MOTION MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANDA, M.D., and EMMANUEL M. PAFOS, M.D., Defendants. --------------------------------------------------------------------------X JAMES S. PAGLINAWAN, ESQ., an attorney admitted to practice before the Courts of this State, affirms the truth of the following under the penalty of perjury: 1. I am an attorney at THE PAGLINAWAN FIRM, P.C., attorneys for plaintiffs Theresa Robinson and Derek Robinson (“Plaintiffs”) and as such I am fully familiar with the facts and circumstances of this action based upon a review of the case file and the investigation materials contained therein. This affirmation is submitted in support of Plaintiffs’ Cross-Motion, which seeks an order: (a) pursuant to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021, dismissing the medical malpractice and loss of consortium claims against defendant LONG ISLAND JEWISH MEDICAL CENTER (“LIJMC”) based on statute of limitations; (b) upon reargument, denying the summary judgment made on behalf of defendant LIJMC as to the aforementioned claims; and (c) for such other, further and different relief as to this Court duly seems just and proper. For the reasons stated below, Plaintiffs’ Cross-Motion should be granted. 2. The motion for summary judgment made on behalf of defendant LIJMC is marked as motion sequence number 5, with NYSCEF DOC. NOS. 120-147, and 165. Plaintiffs’ opposition to the motion includes NYSCEF DOC. NOS. 156-158. 1 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 3. “Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision.” Mazzei v. Licciardi, 47 A.D.3d 774, 774 (2d Dep’t 2008). Respectfully, this Court overlooked and misapprehended the relevant facts and law in deciding the motion for summary judgment made on behalf of defendant LONG ISLAND JEWISH MEDICAL CENTER. POINT I THERE IS NO DISPUTE HERE THAT DEFENDANTS NANDA AND PAFOS WERE EMPLOYEES OF DEFENDANT LIMJC ON APRIL 12, 2016. 4. In its decision, this Court held found: “There is no evidence that either Dr. Nanda or Dr. Pafos acted as employees of LIJMC during Ms. Robinson’s labor and delivery, or during the follow-up post-partum office visits on April 28, 2016 and May 23, 2016.” NYSCEF DOC. 166, at p. 4. In that vein, this Court held that: “Plaintiffs, in opposition, have failed to raise a question of fact as to whether the statute of limitations was tolled pursuant to the continuous treatment doctrine.” NYSCEF DOC. 166, at p. 4. 5. However, as Plaintiffs argued in their papers, there is no dispute here that defendant Nanda was an employee of LIJMC on April 12, 2016. During his deposition, defendant Nanda testified: Q. In 2016, who were you employed by? A. I was employed by Long Island Jewish Hospital, which is a part of Northwell Health system. At that time, it was called Northwell Health. NYSCEF DOC. NO. 139, at p. 14. 6. However, as Plaintiffs also argued in their papers, there is no dispute here that defendant Pafos was similarly an employee of LIJMC on April 12, 2016. To be sure, when being questioned by counsel for defendant LIJMC, defendant Pafos testified: 2 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 Q. Dr. Pafos, correct? My name is Yanique Burke. I’m from Aaronson, Rappaport, Feinstein, and Deutsch. I represent LIJ Medical Center and Northwell Health, Inc. I’m just going to ask you a few questions, just to confirm certain information. Back in April of 2016, were you employed by Long Island Jewish Medical Center? A. I think I was. Q. Okay. And do you recall receiving a paycheck from Long Island Jewish Medical Center at that time? A. Yes, when I was employed I was being paid by the hospital. NYSCEF DOC. NO. 140, at p. 103. 7. Here, there are material issues of fact as to whether the continuous treatment doctrine tolled the statute of limitations on the claims against defendant LIJMC. First, defendant Pafos does not dispute that the claims against him were filed timely because he did not move on this issue. Additionally, defendant Pafos was an employee of defendant LIJMC at the time of the alleged malpractice. NYSCEF DOC. NO. 115, at p. 103. Furthermore, Ms. Robinson sustained the main injury at issue here – her urinary bladder injury -- at LIJMC. She then required follow- up care with defendant Nanda solely because of that specific injury. As important, Ms. Robinson began her prenatal care at LIJMC and was transferred over to defendant Deepak Nanda, M.D., P.C., where defendant Pafos started seeing her. As such, there sufficient nexus between the care provided that defendants Pafos and LIJMC created a material issue of fact on the issue of continuous treatment. 8. Thus, here, there are material issues of fact as to the applicability of the continuous treatment doctrine, making summary judgment improper on this issue. POINT II CPLR 203(b) DOES NOT APPLY ONLY WHERE A PLAINTIFF SEEKS TO NAME AN ADDITONAL DEFENDANT AFTER THE EXPIRATION OF THE STATUTE OF LIMITATIONS. 9. In its decision, this Court also found that Plaintiffs’ reliance upon CPLR 203(b) is 3 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 misplaced, reasoning: “CPLR 203(b) by its terms, only applies where a plaintiff seeks to name an additional defendant after the expiration of the statute of limitations.” NYSCEF DOC. 166, at p. 5. As such, this Court held: “As the within action was commenced against all of the defendants on November 22, 2018, the united in interest and relation-back doctrines are inapplicable here.” NYSCEF DOC. 166, at p. 5. 10. However, the Appellate Division, Second Department, in Xavier v. RY Management Company, held that the applicability of the “relation-back doctrine” is not limited to adding defendants in a complaint. 45 A.D.3d 677, 678-9 (2d Dep’t 2007). There, the court held that it similarly applies to “separate actions which are ultimately consolidated.” Id, at 678. There, the court also held: Parties are united when their interests in the subject matter is such that they will stand or fall together with respect to the plaintiff’s claim. In a negligence action, “the defenses available to two defendants will be identical, and thus their interests will be united, only where one is vicariously liable for the acts of the other.” Id., at 67. In DeLuca v. Baybridge at Bayside Condominium I, the Appellate Division, Second Department, similarly held: Although not preserved for appellate review, we note that pursuant to CPLR 203(c) the relation-back doctrine applies to claims "interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced." Although Century and the Baybridge defendants were sued in two separate actions, the relation-back doctrine may be applied here when the actions are consolidated Since the prior action has been reinstated, these two actions can now be consolidated in the Supreme Court, Kings County. 5 A.D.3d 533, 535 (2d Dep’t 2004) (citations omitted). Notably, the Appellate Division, Second Department, in Matter of Parker v. Port Authority of New York New Jersey, noted: “A unity of interest between codefendants has been found to exist based upon a number of legal relationships including: among members of a partnership; an insured and beneficiaries; or, as here, where the 4 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 parties share a master-servant or employer-employee relationship.” 113 A.D.2d 763, 767 (2d Dep’t 1985) (citations omitted). 11. Here, defendants Pafos and Nanda and defendant LIJMC are united in interest because they had an employee-employer relationship at the time of Ms. Robinson’s treatment at LIJMC. As such, vicarious liability exists between these defendants. Additionally, in support of defendant Pafos’ summary judgment motion is the same exact medical affirmation that defendant LIJMC submitted, showing even further that they will stand and fall together with respect to Ms. Robinson’s claims. 12. Similarly, here, defendant Pafos and defendant Nanda are united in interest because, by their own admissions, they treated Ms. Robinson jointly regarding the pregnancy in question. Additionally, in support of defendant Pafos’ summary judgment motion is the same exact medical affirmation that defendant Nanda submitted, showing even further that they will stand and fall together with respect to Ms. Robinson’s claims. 13. The Court of Appeals, in Buran v. Coupal, held that the following three conditions must be satisfied in order for claims against one defendant to relate back to claims asserted against another defendant: (1) that both claims arose out of same conduct, transaction or occurrence; (2) that the new party is “united in interest” with original defendant, and by reason of that relationship can be charged with such notice of institution of action that he will not be prejudiced in maintaining action on merits; and (3) that the new party knew or should have known that, but for mistake by plaintiff as to identity of proper parties, the action would have been brought against new party as well. 87 N.Y.2d 173, 176 (1995). The Buran Court also held that a plaintiff need not show “excusable mistake” and that it is sufficient that a plaintiff shows that the new party knew or should have known that, but for a mistake concerning identity of the proper parties, the action would have 5 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 been brought against the party. Id. at 180-181. 14. Assuming that this Court would apply the Buran standard, which has been used in cases where the plaintiff is seeking to add a defendant, its requirements are satisfied here. First, the claims against defendants Pafos and Nanda and LIJMC arose out of the same transaction: the negligent labor and delivery care provided to her at LIJMC. Second, defendant LIJMC is united in interest with defendants Nanda and Pafos. Finally, given the facts of this case as reflected in the medical records, defendant LIMC knew or should have known that the action would have been brought against it when the actions against defendants Pafos and Nanda were commenced. 15. It worth noting that, in DeLuca, two years after the statute of limitations had passed as against the defendant in the second action. 5 A.D.3d at 534. Nevertheless, there, the Appellate Division, Second Department, applying CPLR 203(b), found that the second action was timely because it related back to the first action. 5 A.D.3d at 535. Here, had Plaintiffs named defendant LIJMC in a second action one year after commencing this action, this Court would presumably hold that CPLR 203(b) would apply. However, if Plaintiffs did exactly that, defendant LIJMC would have learned of the action against them one year and one month after the statute of limitations had passed. In comparison, here, defendant LIJMC learned of Plaintiffs’ action against it merely one month after the statute of limitations had passed. Therefore. this Court’s refusal to apply the CPLR 203(b) in this case – even when the Appellate Division, Second Department has applied it in cases involving consolidation of actions – makes no sense from a policy standpoint. 16. Thus, the claims LIJMC were timely filed pursuant to CPLR 203(c), making summary judgment improper on the issue of statute of limitations. 6 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 POINT III. UPON REARGUMENT, THIS COURT SHOULD DENY THE SUMMARY JUDGMENT MADE ON BEHALF OF DEFENDANT LIJMC AS TO THE MEDICAL MALPRACTICE CLAIM. 17. The Appellate Division, Second Department, has held that summary judgment is a drastic remedy that should not be invoked where there is any doubt as to the existence of a triable issue of fact. Hantz v. Fishman, 155 A.D.2d 415, 415 (2d Dep’t 1989). Further, the Appellate Division, Second Department, has held that the Court’s function in deciding the summary judgment motion is issue finding, not issue determination, and the identification of unresolved fact issues should result in the denial of the motion. Id. Additionally, the Appellate Division, Second Department, has held, on a motion for summary judgment the court should accept as true the opposing party's evidence and any evidence of the movant which favors the opposing party. Id. Equally important, the Court of Appeals has held: “It is not the function of a court deciding a summary judgment motion to make credibility determinations or findings of fact, but rather to identify material issues of fact (or point to the lack thereof).” Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 505 (2012). Finally, the Appellate Division, Second Department, has held: “When experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution.” Shields v. Baktidy, 11 A.D.3d 671, 672 (2d Dep’t 2004). 18. Clearly, here, there are plainly factual issues unresolved, where the respective parties’ experts offer diametrically opposing statements on the issue of whether Defendants departed from good and accepted standards of medical care and whether those departures constituted a proximate cause of Plaintiffs’ pain and suffering. Thus, in deciding the branch of the motion seeking summary judgment made on behalf of defendant LIJMC as to Plaintiffs’ cause of action for medical malpractice should be denied. 19. Therefore, this Court should grant Plaintiffs’ Cross-Motion, which seeks an order 7 of 8 FILED: QUEENS COUNTY CLERK 02/04/2022 03:02 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 190 RECEIVED NYSCEF: 02/04/2022 pursuant to CPLR 2221, upon reargument, denying the summary judgment made on behalf of defendant LIJMC as to the aforementioned claim. 20. No prior application has been made for the same relief sought by this Motion. WHEREFORE, Plaintiffs respectfully request that their cross-motion be granted in its entirety and that this Court grant such other and further relief as to this Court seems just and proper. Dated: February 4, 2022 Forest Hills, New York THE PAGLINAWAN FIRM, P.C. Attorneys for plaintiffs THERESA ROBINSON and DEREK ROBINSON 118-21 Queens Blvd., Suite 501 Forest Hills, NY 11375 (718) 576-2544 ______________________________ BY: JAMES S. PAGLINAWAN, ESQ. 8 of 8