Preview
FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018
NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
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THERESA ROBINSON and DEREK ROBINSON, Index No.:
717964/2018
Plaintiffs,
AFFIRMATION
- against - IN SUPPORT OF
PLAINTIFFS’ MOTION
NORTHWELL HEALTH, INC., LONG ISLAND JEWISH
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’ Motion, which seeks an
order: (a) pursuant to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021,
dismissing claims of (i) medical malpractice and loss of consortium against defendant DEEPAK
NANDA, M.D. and (ii) vicariously liability against defendant DEEPAK NANDA, M.D., P.C. with
respect to defendant DEEPAK NANDA, M.D.; (b) upon reargument, denying the summary judgment
made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. 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’ Motion should be granted.
2. The motion for summary judgment made on behalf of DEEPAK NANDA, M.D. and
DEEPAK NANDA, M.D., P.C. is marked as motion sequence number 4, with NYSCEF DOC. NO. 87-
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103, and 162. Plaintiffs’ opposition to the motion includes NYSCEF DOC. NO. 153-155.
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).
4. In a decision dated December 6, 2021, this Court found material issues of fact as to
“whether Ms. Robinson was a patient of Deepak Nanda, P.C., rather than Dr. Nanda individually, so
that the continuous treatment doctrine would toll the statute of limitations during Ms. Robinson’s
postpartum visits with Dr. Pafos, a physician employed by said professional corporation.” NYSCEF
DOC. NO. 168, at p. 3.
5. Nevertheless, this Court, subsequently dismissed Plaintiffs’ medical malpractice and
loss of consortium against defendant DEEPAK NANDA, M.D. NYSCEF DOC. NO. 168, at p. 4. This
Court, in dismissing Plaintiffs’ medical malpractice and loss of consortium against defendant DEEPAK
NANDA, M.D., held:
To the extent plaintiff’s [sic] expert opines that the defendants failed to assess Ms.
Robinson for CPD by performing a modified Mueller-Hillis maneuver and
improperly administered Pitocin, these claims were not raised in the complaint, bills
of particulars, or even mentioned in an expert witness disclosure. These claims
therefore will not be considered as a “plaintiff cannot, for the first time in opposition
for summary judgment, raise a new or materially different theory of recovery against
a party from those pleaded in the complaint and bill of particulars.
NYSCEF DOC. NO. 168, at p. 7 (internal citations omitted). Respectfully, this Court overlooked
and misapprehended the relevant facts and law in deciding the motion for summary judgment
made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C.
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POINT I
PLAINTIFFS DID NOT RAISE DEPARTURES FOR THE FIRST TIME
IN THEIR OPPOSITION PAPERS.
6. In Toth v. Bloshinsky, the Appellate Division, Second Department, reversing the
IAS Court’s order directing the plaintiff to provide “additional, more detailed bill of particulars,”
specifically held:
The purpose of a bill of particulars is to amplify pleadings, limit proof, and
prevent surprise at trial, not to provide evidentiary material. It must provide a
general statements of the acts or omissions constituting the alleged negligence.
There is no need for a plaintiff to set forth the manner in which the physician
failed to act in accordance with good and accepted medical practice, since a
physician is chargeable with knowing those medically accepted standards
applicable to the proper care and treatment of the plaintiff.
39 A.D.3d 848, 848-9 (2d Dep’t 2007). Consistent with this holding, the Appellate Division,
Second Department, in Mehtvin v. Ravi, the, held that a medical expert is not asserting a new
theory of liability where she merely expounds on the allegation in the bill of particulars, finding
that:
Contrary to the Supreme Court’s determination, the affidavit of the plaintiffs ‘
expert did not assert a new theory of liability not asserted in the pleadings. Rather,
the expert’s assertion that the decedent’s history of rickets was one of the risk
factors which warranted administration of an anticoagulant medication merely
expounded on the allegation in the bills of particulars that the physicians were in
negligent in failing to administer such medication.
180 A.D.3d 661, 663 (2d Dep’t 2020).
7. Here, Plaintiffs’ expert opined, to a reasonable degree of medical certainty that “Dr.
Nanda departed from good and accepted standard of care in treating Ms. Robinson in failing to
take her proper obstetrical and gynecological history and sufficiently monitor her during her
labor prior to ordering Pitocin drip to her.” NYSCEF DOC. NO. 154, at para 40. Notably,
Plaintiffs’ bill of particulars as to defendant Nanda specifically alleges these departures:
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Without waiving the above objections, it will be claimed at trial that this
answering departed from good and accepted standards of care in treating plaintiff
Theresa Robinson in the following respects: [. . .] failing to take heed of her
history of prior c-section in determining the plan for labor and delivery; [. . .]
failing to sufficiently monitor her during her prenatal period; failing to take her
proper obstetrical and gynecological history; failing take heed of the nurses'
observations and notes regarding her condition during labor; failing to follow-up
her condition prenatally and during labor.
NYSCEF DOC. NO. 28, at para 3. Plaintiffs’ expert did nothing but expound on these allegations
by explaining how Ms. Robinson’s obstetrical and gynecological history, if properly obtained
and considered, would have made the Pitocin administration improper for her. To wit:
Oxytocin, given as an intravenous drip and more commonly called Pitocin, acts
on the smooth muscle of the uterus to stimulate contractions. It stimulates
rhythmic contractions of the uterus and increases the frequency of uterine
contractions. In 2016, it was well known in the obstetrical community that Pitocin
was contraindicated in women with significant cephalopelvic disproportion
(“CPD”). In Ms. Robinson’s case, she had significant CPD because on April 12,
2016, at 10:51pm, RN Stanga noted that Ms. Robinson was noted to be 10
centimeter dilated with -1 station. Similarly, Pitocin, in 2016, was contraindicated
in instances where, as here, there is malposition of the fetal head. In Ms.
Robinson’s case, the fetal head was in OP (occiput posterior position). Finally, in
2016, Pitocin is contraindicated when there is overdistention of the uterus, which
Ms. Robinson had in light of her well-documented polyhydramnios from
February 2, 2016 to March 17, 2016.
NYSCEF DOC. NO. 154, at para. 40. To be sure, according to Plaintiffs’ expert, her obstetrical
and gynecological history, at the time of her labor as well as findings made during her labor,
included CPD and malposition of the fetal head, and overdistention of her uterus. As such,
Plaintiffs’ expert opined, to a reasonable degree of medical certainty that, defendant Nanda’s
failure “to take her proper obstetrical and gynecological history and sufficiently monitor her
during her labor prior to ordering Pitocin drip to her” caused his failure to determine that the
Pitocin drip was contraindicated in Ms. Robinson’s case. NYSCEF DOC. NO. 154, at para. 40. In
Clearly, the failure to take heed of her PD, which was a part of her obstetrical and gynecological
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history and a finding during her labor, is the relevant departure here. It is not the failure to assess
her for CPD. The failure to take her proper obstetrical and gynecological history, which
consisted of contraindications to Pitocin drip, is the relevant departure here. Indeed, in the most
basic terms, “contraindication,” which is defined as “any condition that renders a particular line
of treatment improper or undesirable.”1 Therefore, knowing a patient’s medical history is
essential to determining the existence of any contraindication. Thus, in finding that Plaintiffs’
expert merely opined that defendant Nanda failed to assess Ms. Robinson for CPD by performing a
modified Mueller-Hillis maneuver and improperly administered Pitocin, this Court overlooked and
misapprehended the relevant facts in this case.
POINT II
DEFENDANTS TESFIFIED THAT, PRIOR TO 10:55PM ON APRIL 12, 2016, DEFENDANT
NANDA WAS THE ATTENDING PHYSICIAN FOR PLAINTIFF.
8. With respect to Plaintiffs’ allegation that defendant DEEPAK NANDA, M.D.
negligently delayed performing C-section, this Court held:
To the extent that plaintiffs’ expert opines that Dr. Nanda departed from good and
accepted standard of care in treating Ms. Robinson by negligently causing a delay in
performing the cesarian section, and specifically not delivering the baby at approximately
10:00pm on April 12, 2016, rather than two hours later, said opinion is not supported by
th evidence in the record. The evidence establishes that Dr. Pafos took over for Dr. Nanda
at some time between 5:00pm and 6:00pm on April 12, 2016 and there is no evidence
that Dr. Nanda continued to manage Ms. Robinson’s labor after Pafos took over for him.
Plaintiffs’ expert does not opine that a cesarian section was warranted at that time Dr.
Nanda managed the plaintiff’s labor, which was limited to the hours prior to 6:00pm on
April 12, 2016.
NYSCEF DOC. NO. 168, at pp. 7-8. However, when defendant Emmanuel Pafos, M.D. was
deposed, he testified as follows:
Q. So looking at page 118, Doctor, of this exhibit, specifically a note dated
April 12, 2016 and timed at 2255, does that give you an idea with respect to when
was the first time you treated this patient?
A. That is the time.
1
https://medical-dictionary.thefreedictionary.com/contraindication
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MR. KRAUS: Note my objection to the form of that question.
Q. Prior to that, who was the attending obstetrician for this patient?
A. Dr. Nanda.
Q. And around that time, 2205, is it fair to say that you took over this patient’s
obstetrical care?
A. Yes.
NYSCEF DOC. NO. 99, at p. 39, lines 16-25; p. 40, lines 2-5 (emphasis added). Clearly, defendant
Pafos’ testimony contradicts the testimony of defendant Nanda regarding the timing of their care
and treatment of Ms. Robinson on April 12, 2016. Clearly, defendant Pafos’ testimony supports
Plaintiffs’ expert’s opinion that defendant Nanda was still the attending physician for Ms. Robinson
around 10pm. Thus, in finding that there is no evidence that Dr. Nanda continued to manage Ms.
Robinson’s labor after 10pm that day, this Court overlooked and misapprehended the relevant facts
in this case.
POINT III.
PLAINTIFFS’ EXPERT’S ALLEGATION THAT DEFENDANT NANDA FAILED TO
FOLLOW-UP PLAINTIFF’S CONDITION IS NOT CONCLUSORY.
9. This Court also held: “To the extent that plaintiffs’ expert opines that Dr. Nanda
departed from a good and accepted standard of care by failing to sufficiently follow-up Ms.
Robinson’s condition during labor based upon the intervals between physician evaluations, said
opinion is lacking in specificity and is entirely conclusory.” NYSCEF DOC. NO. 168, at p. 8.
However, Plaintiffs’ expert’s opinion is specifically supported by the medical records showing the
significant lapse of time in examining Ms. Robinson. NYSCEF DOC. NO. 154, at para. 43. This
opinion is not conclusory, merely because it was stated in the most succinct way using a chart. In
fact, this opinion shows specificity lacking from defendant Nanda’s expert’s opinions, which this
Court found sufficient to support his motion for summary judgment.
10. Therefore, this Court should grant Plaintiffs’ Motion, which seeks an order pursuant
to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021, dismissing claims of:
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(i) medical malpractice and loss of consortium against defendant DEEPAK NANDA, M.D.; and (ii)
vicariously liability against defendant DEEPAK NANDA, M.D., P.C. with respect to defendant DEEPAK
NANDA, M.D.
POINT IV.
UPON REARGUMENT, THIS COURT SHOULD DENY THE SUMMARY JUDGMENT MADE ON
BEHALF OF DEFENDANTS DEEPAK NANDA, M.D. AND DEEPAK NANDA, M.D., P.C. AS TO
THE AFOREMENTIONED CLAIMS.
11. 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).
12. 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 Plaintiff’s pain and suffering. Thus, in deciding the branch of the
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motion seeking summary judgment made on behalf of defendants DEEPAK NANDA, M.D. and
DEEPAK NANDA, M.D., P.C. as to Plaintiffs’ cause of action for medical malpractice should
be denied.
13. Therefore, this Court should grant Plaintiffs’ Motion, which seeks an order pursuant
to CPLR 2221, upon reargument, denying the summary judgment made on behalf of defendants
DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. as to the aforementioned claims.
14. No prior application has been made for the same relief sought by this Motion.
WHEREFORE, Plaintiffs respectfully request that their 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: January 25, 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 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 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’ MOTION NORTHWELL HEALTH, INC., LONG ISLAND JEWISH 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’ Motion, which seeks an order: (a) pursuant to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021, dismissing claims of (i) medical malpractice and loss of consortium against defendant DEEPAK NANDA, M.D. and (ii) vicariously liability against defendant DEEPAK NANDA, M.D., P.C. with respect to defendant DEEPAK NANDA, M.D.; (b) upon reargument, denying the summary judgment made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. 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’ Motion should be granted. 2. The motion for summary judgment made on behalf of DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. is marked as motion sequence number 4, with NYSCEF DOC. NO. 87- 1 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 103, and 162. Plaintiffs’ opposition to the motion includes NYSCEF DOC. NO. 153-155. 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). 4. In a decision dated December 6, 2021, this Court found material issues of fact as to “whether Ms. Robinson was a patient of Deepak Nanda, P.C., rather than Dr. Nanda individually, so that the continuous treatment doctrine would toll the statute of limitations during Ms. Robinson’s postpartum visits with Dr. Pafos, a physician employed by said professional corporation.” NYSCEF DOC. NO. 168, at p. 3. 5. Nevertheless, this Court, subsequently dismissed Plaintiffs’ medical malpractice and loss of consortium against defendant DEEPAK NANDA, M.D. NYSCEF DOC. NO. 168, at p. 4. This Court, in dismissing Plaintiffs’ medical malpractice and loss of consortium against defendant DEEPAK NANDA, M.D., held: To the extent plaintiff’s [sic] expert opines that the defendants failed to assess Ms. Robinson for CPD by performing a modified Mueller-Hillis maneuver and improperly administered Pitocin, these claims were not raised in the complaint, bills of particulars, or even mentioned in an expert witness disclosure. These claims therefore will not be considered as a “plaintiff cannot, for the first time in opposition for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and bill of particulars. NYSCEF DOC. NO. 168, at p. 7 (internal citations omitted). Respectfully, this Court overlooked and misapprehended the relevant facts and law in deciding the motion for summary judgment made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. 2 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 POINT I PLAINTIFFS DID NOT RAISE DEPARTURES FOR THE FIRST TIME IN THEIR OPPOSITION PAPERS. 6. In Toth v. Bloshinsky, the Appellate Division, Second Department, reversing the IAS Court’s order directing the plaintiff to provide “additional, more detailed bill of particulars,” specifically held: The purpose of a bill of particulars is to amplify pleadings, limit proof, and prevent surprise at trial, not to provide evidentiary material. It must provide a general statements of the acts or omissions constituting the alleged negligence. There is no need for a plaintiff to set forth the manner in which the physician failed to act in accordance with good and accepted medical practice, since a physician is chargeable with knowing those medically accepted standards applicable to the proper care and treatment of the plaintiff. 39 A.D.3d 848, 848-9 (2d Dep’t 2007). Consistent with this holding, the Appellate Division, Second Department, in Mehtvin v. Ravi, the, held that a medical expert is not asserting a new theory of liability where she merely expounds on the allegation in the bill of particulars, finding that: Contrary to the Supreme Court’s determination, the affidavit of the plaintiffs ‘ expert did not assert a new theory of liability not asserted in the pleadings. Rather, the expert’s assertion that the decedent’s history of rickets was one of the risk factors which warranted administration of an anticoagulant medication merely expounded on the allegation in the bills of particulars that the physicians were in negligent in failing to administer such medication. 180 A.D.3d 661, 663 (2d Dep’t 2020). 7. Here, Plaintiffs’ expert opined, to a reasonable degree of medical certainty that “Dr. Nanda departed from good and accepted standard of care in treating Ms. Robinson in failing to take her proper obstetrical and gynecological history and sufficiently monitor her during her labor prior to ordering Pitocin drip to her.” NYSCEF DOC. NO. 154, at para 40. Notably, Plaintiffs’ bill of particulars as to defendant Nanda specifically alleges these departures: 3 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 Without waiving the above objections, it will be claimed at trial that this answering departed from good and accepted standards of care in treating plaintiff Theresa Robinson in the following respects: [. . .] failing to take heed of her history of prior c-section in determining the plan for labor and delivery; [. . .] failing to sufficiently monitor her during her prenatal period; failing to take her proper obstetrical and gynecological history; failing take heed of the nurses' observations and notes regarding her condition during labor; failing to follow-up her condition prenatally and during labor. NYSCEF DOC. NO. 28, at para 3. Plaintiffs’ expert did nothing but expound on these allegations by explaining how Ms. Robinson’s obstetrical and gynecological history, if properly obtained and considered, would have made the Pitocin administration improper for her. To wit: Oxytocin, given as an intravenous drip and more commonly called Pitocin, acts on the smooth muscle of the uterus to stimulate contractions. It stimulates rhythmic contractions of the uterus and increases the frequency of uterine contractions. In 2016, it was well known in the obstetrical community that Pitocin was contraindicated in women with significant cephalopelvic disproportion (“CPD”). In Ms. Robinson’s case, she had significant CPD because on April 12, 2016, at 10:51pm, RN Stanga noted that Ms. Robinson was noted to be 10 centimeter dilated with -1 station. Similarly, Pitocin, in 2016, was contraindicated in instances where, as here, there is malposition of the fetal head. In Ms. Robinson’s case, the fetal head was in OP (occiput posterior position). Finally, in 2016, Pitocin is contraindicated when there is overdistention of the uterus, which Ms. Robinson had in light of her well-documented polyhydramnios from February 2, 2016 to March 17, 2016. NYSCEF DOC. NO. 154, at para. 40. To be sure, according to Plaintiffs’ expert, her obstetrical and gynecological history, at the time of her labor as well as findings made during her labor, included CPD and malposition of the fetal head, and overdistention of her uterus. As such, Plaintiffs’ expert opined, to a reasonable degree of medical certainty that, defendant Nanda’s failure “to take her proper obstetrical and gynecological history and sufficiently monitor her during her labor prior to ordering Pitocin drip to her” caused his failure to determine that the Pitocin drip was contraindicated in Ms. Robinson’s case. NYSCEF DOC. NO. 154, at para. 40. In Clearly, the failure to take heed of her PD, which was a part of her obstetrical and gynecological 4 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 history and a finding during her labor, is the relevant departure here. It is not the failure to assess her for CPD. The failure to take her proper obstetrical and gynecological history, which consisted of contraindications to Pitocin drip, is the relevant departure here. Indeed, in the most basic terms, “contraindication,” which is defined as “any condition that renders a particular line of treatment improper or undesirable.”1 Therefore, knowing a patient’s medical history is essential to determining the existence of any contraindication. Thus, in finding that Plaintiffs’ expert merely opined that defendant Nanda failed to assess Ms. Robinson for CPD by performing a modified Mueller-Hillis maneuver and improperly administered Pitocin, this Court overlooked and misapprehended the relevant facts in this case. POINT II DEFENDANTS TESFIFIED THAT, PRIOR TO 10:55PM ON APRIL 12, 2016, DEFENDANT NANDA WAS THE ATTENDING PHYSICIAN FOR PLAINTIFF. 8. With respect to Plaintiffs’ allegation that defendant DEEPAK NANDA, M.D. negligently delayed performing C-section, this Court held: To the extent that plaintiffs’ expert opines that Dr. Nanda departed from good and accepted standard of care in treating Ms. Robinson by negligently causing a delay in performing the cesarian section, and specifically not delivering the baby at approximately 10:00pm on April 12, 2016, rather than two hours later, said opinion is not supported by th evidence in the record. The evidence establishes that Dr. Pafos took over for Dr. Nanda at some time between 5:00pm and 6:00pm on April 12, 2016 and there is no evidence that Dr. Nanda continued to manage Ms. Robinson’s labor after Pafos took over for him. Plaintiffs’ expert does not opine that a cesarian section was warranted at that time Dr. Nanda managed the plaintiff’s labor, which was limited to the hours prior to 6:00pm on April 12, 2016. NYSCEF DOC. NO. 168, at pp. 7-8. However, when defendant Emmanuel Pafos, M.D. was deposed, he testified as follows: Q. So looking at page 118, Doctor, of this exhibit, specifically a note dated April 12, 2016 and timed at 2255, does that give you an idea with respect to when was the first time you treated this patient? A. That is the time. 1 https://medical-dictionary.thefreedictionary.com/contraindication 5 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 MR. KRAUS: Note my objection to the form of that question. Q. Prior to that, who was the attending obstetrician for this patient? A. Dr. Nanda. Q. And around that time, 2205, is it fair to say that you took over this patient’s obstetrical care? A. Yes. NYSCEF DOC. NO. 99, at p. 39, lines 16-25; p. 40, lines 2-5 (emphasis added). Clearly, defendant Pafos’ testimony contradicts the testimony of defendant Nanda regarding the timing of their care and treatment of Ms. Robinson on April 12, 2016. Clearly, defendant Pafos’ testimony supports Plaintiffs’ expert’s opinion that defendant Nanda was still the attending physician for Ms. Robinson around 10pm. Thus, in finding that there is no evidence that Dr. Nanda continued to manage Ms. Robinson’s labor after 10pm that day, this Court overlooked and misapprehended the relevant facts in this case. POINT III. PLAINTIFFS’ EXPERT’S ALLEGATION THAT DEFENDANT NANDA FAILED TO FOLLOW-UP PLAINTIFF’S CONDITION IS NOT CONCLUSORY. 9. This Court also held: “To the extent that plaintiffs’ expert opines that Dr. Nanda departed from a good and accepted standard of care by failing to sufficiently follow-up Ms. Robinson’s condition during labor based upon the intervals between physician evaluations, said opinion is lacking in specificity and is entirely conclusory.” NYSCEF DOC. NO. 168, at p. 8. However, Plaintiffs’ expert’s opinion is specifically supported by the medical records showing the significant lapse of time in examining Ms. Robinson. NYSCEF DOC. NO. 154, at para. 43. This opinion is not conclusory, merely because it was stated in the most succinct way using a chart. In fact, this opinion shows specificity lacking from defendant Nanda’s expert’s opinions, which this Court found sufficient to support his motion for summary judgment. 10. Therefore, this Court should grant Plaintiffs’ Motion, which seeks an order pursuant to CPLR 2221 for leave to reargue this Court’s decision dated December 6, 2021, dismissing claims of: 6 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 (i) medical malpractice and loss of consortium against defendant DEEPAK NANDA, M.D.; and (ii) vicariously liability against defendant DEEPAK NANDA, M.D., P.C. with respect to defendant DEEPAK NANDA, M.D. POINT IV. UPON REARGUMENT, THIS COURT SHOULD DENY THE SUMMARY JUDGMENT MADE ON BEHALF OF DEFENDANTS DEEPAK NANDA, M.D. AND DEEPAK NANDA, M.D., P.C. AS TO THE AFOREMENTIONED CLAIMS. 11. 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). 12. 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 Plaintiff’s pain and suffering. Thus, in deciding the branch of the 7 of 8 FILED: QUEENS COUNTY CLERK 01/25/2022 05:34 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 185 RECEIVED NYSCEF: 01/25/2022 motion seeking summary judgment made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. as to Plaintiffs’ cause of action for medical malpractice should be denied. 13. Therefore, this Court should grant Plaintiffs’ Motion, which seeks an order pursuant to CPLR 2221, upon reargument, denying the summary judgment made on behalf of defendants DEEPAK NANDA, M.D. and DEEPAK NANDA, M.D., P.C. as to the aforementioned claims. 14. No prior application has been made for the same relief sought by this Motion. WHEREFORE, Plaintiffs respectfully request that their 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: January 25, 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