Preview
FILED: QUEENS COUNTY CLERK 08/04/2021
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NYSCEF DOC. NO. 150
199 RECEIVED NYSCEF: 08/18/2021
02/08/2022
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 in Opposition to
- against - Defendants’ Motion for
Summary Judgment
NORTHWELL HEALTH, INC., LONG ISLAND JEWISH
MEDICAL CENTER, DEEPAK NANDA, M.D., P.C.,
DEEPAK NANADA, M.D., and EMMANUEL M. PAFOS,
M.D.,
Defendants.
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JAMES S. PAGLINAWAN, ESQ., an attorney duly licensed to practice law in the State of
New York, affirms the following to be true under the penalties of perjury and CPLR 2106:
1. I am an attorney at THE PAGLINAWAN FIRM, P.C., attorneys for plaintiffs
THERESA ROBINSON and DEREK ROBINSON. As such, I am fully familiar with the facts and
circumstances of this action based upon my review of the file maintained by this office in the course
of the action herein. This affirmation, along with the annexed exhibits, is submitted in opposition to
the motion made on behalf of defendants NORTHWELL HEALTH, INC., LONG ISLAND
JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANADA, M.D., and
EMMANUEL M. PAFOS, M.D. (“Defendants”), for an order granting summary judgment in their
favor.
2. Attached are the following exhibits in opposition to Defendants’ motion for
summary judgment:
EXHIBIT 1: Affidavit from Plaintiff’s expert in Obstetrics and Gynecology1
1
This expert affidavit has been redacted to exclude the name of this medical expert. See Marano
v. Mercy Hosp., 21 A.D.2d 48 (2d Dep’t 1998). If required, an unredacted copy of this affirmation will be
provided to the Court for an in-camera inspection. Id.
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EXHIBIT 2: Medical records, Deepak Nanda, M.D., P.C.
3. For the reasons stated below, this Court should deny Defendants’ motions.
PRELIMINARY STATEMENT
4. The claims against defendants Deepak Nanda, M.D.. Long Island Jewish Medical
Center, and Northwell, Inc. were timely commenced based on: (a) the continuous treatment
doctrine; and (b) CPLR 203(b). As such, these defendants’ motion to dismiss based on statute of
limitations should be denied.
5. Further, Defendants have patently failed to meet their burden of showing their
entitlement to a summary judgment. As such, their motions should be denied outright, even without
considering Plaintiffs’ expert affirmation in opposition.
6. Finally, 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 Ms. Robinson’s pain and suffering. Therefore, and as a matter of law, this Court should
deny Defendants’ motion in view of the material issues of fact that are within the province of the
jury to resolve.
COUNTERSTATEMENT OF MATERIAL FACTS
A. PRE-NATAL CARE
7. On August 26, 2015, plaintiff Theresa Robinson, then 29 years old, initially obtained
prenatal care at Long Island Jewish Medical Center, (“LIJMC”) Women for Women Obstetrics &
Gynecology. NYSCEF DOC. NO. 116, at p. 49. A sonogram was performed, which showed a
gestational age of seven weeks and five days and expected date of delivery (“EDC”) of April 8,
2016. NYSCEF DOC. NO. 116, at p. 50. Her past pregnancy history included: (1) pregnancy in
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2009 resulting to a C-section at 37 weeks for fetal distress; (2) an ectopic pregnancy in 2010.
NYSCEF DOC. NO. 116, at p. 50. A follow-up prenatal visit in one month was planned.
8. On September 23, 2015, Ms. Robinson returned to LIJMC for her planned follow-up
prenatal visit. NYSCEF DOC. NO. 116, at p. 53. She was noted to be 11 6/7 weeks pregnant.
NYSCEF DOC. NO. 116, at p. 53. A follow-up visit in four weeks was planned. NYSCEF DOC.
NO. 116, at p. 53.
9. On October 19, 2015, Ms. Robinson again returned to LIJMC for her planned
follow-up prenatal visit. NYSCEF DOC. NO. 116, at p. 57. She was noted to be doing well without
complaints. NYSCEF DOC. NO. 116, at p. 57. A follow-up visit in four weeks was planned.
NYSCEF DOC. NO. 116, at p. 57.
10. On November 18, 2015, Ms. Robinson again returned to LIJMC for her planned
follow-up prenatal visit. NYSCEF DOC. NO. 116, at p. 62. She was noted to be 19 6/7 weeks
pregnant and without any complaints. NYSCEF DOC. NO. 116, at p. 62. A follow-up visit in one
month was planned. NYSCEF DOC. NO. 116, at p. 63.
11. On December 8, 2015, Ms. Robinson’s prenatal care was transferred to Deepak
Nanda, M.D., P.C. NYSCEF DOC. NO. 116, at p. 12. She was 22 weeks pregnant. NYSCEF DOC.
NO. 116, at p. 12. Deepak Nanda (“Dr. Nanda”) examined her and made no abnormal findings.
NYSCEF DOC. NO. 116, at p. 8-9.
12. On December 22, 2015, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care and Dr. Nanda saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted
to be 24 5/7 weeks pregnant and with “normal anatomy scan.” NYSCEF DOC. NO. 116, at p. 9. A
follow-up visit in three to four weeks was planned. NYSCEF DOC. NO. 116, at p. 9.
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13. On January 12, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for
a follow-up prenatal care and Emmanuel M. Pafos, M.D. (“Dr. Pafos”) saw her. NYSCEF DOC.
NO. 116, at p. 8-9. She was noted to be 27 weeks and five days pregnant with complaints of “patchy
itching.” NYSCEF DOC. NO. 116, at pp. 8-9. A follow-up visit in one week was planned. NYSCEF
DOC. NO. 116, at p. 9.
14. On January 19, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for
a follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted
to be 28 5/7 weeks pregnant and that her “rash markedly improved.” NYSCEF DOC. NO. 116, at
pp. 8-9. A follow-up visit in two weeks was planned. NYSCEF DOC. NO. 116, at p. 9.
15. On February 2, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care and Dr. Nanda saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted
to be 30 5/7 weeks pregnant and with polyhydramnios. NYSCEF DOC. NO. 116, at p. 8-9. A
follow-up visit in two weeks was planned. NYSCEF DOC. NO. 116, at p. 9.
16. On February 15, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care. NYSCEF DOC. NO. 116, at p. 8. She was noted to be 32 weeks and five
days pregnant. NYSCEF DOC. NO. 116, at p. 8.
17. On March 1, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to
be 34 5/7 weeks pregnant and with polyhydramnios. NYSCEF DOC. NO. 116, at pp. 8-9. The BPP
[biophysical profile] was noted 10/10. NYSCEF DOC. NO. 116, at p. 9. A follow-up visit in one
week was planned. NYSCEF DOC. NO. 116, at p. 9.
18. On March 8, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to
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be 35 5/7 weeks pregnant and with improved polyhydramnios. NYSCEF DOC. NO. 116, at pp. 8-9.
The BPP was noted 10/10. NYSCEF DOC. NO. 116, at p. 9. A follow-up visit in one week was
planned. NYSCEF DOC. NO. 116, at p. 9.
19. On March 17, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for
a follow-up prenatal care and Dr. Pafos saw her. Exhibit 2, at p. 5. She was noted to be 37 weeks
pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10; the estimated fetal weight (“EFW”)
was 3,052 grams; and the amniotic fluid index (“AFI”) level was 25. Exhibit 2, at p. 5. A follow-up
visit in one week was planned. Exhibit 2, at p. 5.
20. On March 25, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for
a follow-up prenatal care and Dr. Pafos saw her. Exhibit 2, at p. 5. She was noted to be 38 weeks
pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10. Exhibit 2, at p. 5. A follow-up visit in
one week was planned. Exhibit 2, at p. 5.
21. On April 1, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-
up prenatal care. Exhibit 2, at p. 5. She was noted to be 39 weeks pregnant. Exhibit 2, at p. 5.
22. On April 7, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-
up prenatal care. Exhibit 2, at p. 5. She was noted to be 40 weeks pregnant. Exhibit 2, at p. 5.
23. On April 9, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a
follow-up prenatal care and Dr. Nanda saw her. Exhibit 2, at p. 5. She was noted to be 40 2/7 weeks
pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10. Exhibit 2, at p. 5. A follow-up visit in
two to three days was planned. Exhibit 2, at p. 5.
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B. ADMISSION AT LIJMC
24. On April 12, 2016, at around 2am, Ms. Robinson was admitted at LIJMC rupture of
membranes. NYSCEF DOC. NO. 117, at p. 19. It was noted that she was gravida 6, para 1, term 1,
preterm 0, spontaneous abortion 4, and living child 1. NYSCEF DOC. NO. 117, at p. 19.
25. At 1:10am, Tari Brodsky, N.P. noted that Ms. Robinson was a 29-year-old female
with 40.4 gestational age complaining of leaking clear fluid since 11pm with mild contractions.
NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted that the external fetal monitor (“EFM”)
showed a rate of 135 with moderate variability, accelerations, and two episodes of late
decelerations. NYSCEF DOC. NO. 117, at p. 33. N.P. Brodsky noted that Ms. Robinson had mild
uterine contractions. NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted a previous history of C-
section in 2009 and documented her vaginal examination findings as follow: 1/2 centimeter
[effacement], 70% [dilation], and -3 [station]. NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted
the plan of care was discussed with Dr. Nanda, which included TOLAC. NYSCEF DOC. NO. 117,
at p. 33.
26. At 1:42am, Lemile Ricanor, R.N. (“R.N. Ricanor”) noted a pain level of 6/10.
NYSCEF DOC. NO. 117, at p. 125.
27. At 3:49am, Grace Chow, M.D. (a PGY-1 resident) documented her vaginal
examination findings as follow: 1 cm effacement, 70% dilatation, and -3 station. NYSCEF DOC.
NO. 117, at p. 33. Dr. Chow noted that Ms. Robinson had an order for morphine for pain control.
NYSCEF DOC. NO. 117, at p. 33.
28. On April 12, 2016, at around 12:21pm, Leat Mechlovitz, M.D. noted that the plan of
care was discussed with Dr. Nanda, which included a placement of a cervical balloon and
administering Pitocin as needed. NYSCEF DOC. NO. 117, at p. 33-34. At around 1:17pm, Dr.
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Mechlovitz noted that the cervical balloon had been inserted, and that the vaginal examination
showed the following: 1-2 cm. effacement, 90 percent dilatation, and -2 station, NYSCEF DOC.
NO. 117, at p. 33-34.
29. On April 12, 2016, at around 5:17pm, Krista Neal, M.D. that the vaginal
examination showed the following: 3-4 cm. effacement, 70 percent dilatation, and -2 station,
NYSCEF DOC. NO. 117, at p. 34. Dr. Neal documented that the contractions were occurring
irregularly every six minutes and that she had discussed with Dr. Nanda the plan to start Ms.
Robinson “on low dose pitocin” drip. NYSCEF DOC. NO. 117, at p. 34.
30. On April 12, 2016, at around 6:13pm, Dr. Mechlovitz noted, on vaginal
examination, 3-4 cm effacement, 90 percent dilatation, and -2 station. NYSCEF DOC. NO. 117, at p.
34. She noted that the cervical balloon was removed. NYSCEF DOC. NO. 117, at p. 34. She
assigned a category I to the EFM readings. NYSCEF DOC. NO. 117, at p. 34. She noted: “We are
to proceed with Pitocin and epidural prn [as needed].” NYSCEF DOC. NO. 117, at p. 34.
31. On April 12, 2016, at around 9:32pm, Jennifer Stanga, R.N., increased the Pitocin
drip from 4 milliunits/minute to 5 milliunits/minute. NYSCEF DOC. NO. 136, at p. 37. At around
9:54pm, she increased the Pitocin drip from 5 milliunits/minute to 6 milliunits/minute. NYSCEF
DOC. NO. 136, at p. 42. At 10:14pm, she noted late decelerations but did not notify any doctors.
NYSCEF DOC. NO. 136, at p. 45. Nor did she decrease the dose of the Pitocin drip. NYSCEF DOC.
NO. 136, at p. 42. She also neither turned nor gave supplemental oxygen to Ms. Robinson. NYSCEF
DOC. NO. 136, at pp. 45-45.
32. On April 12, 2016, at 10:51pm, RN Stanga noted that Ms. Robinson was noted to be
10 centimeter dilated with -1 station. NYSCEF DOC. NO. 117, at p. 118.
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33. On April 12, 2016, at around 10:55pm, Dr. Pafos first treated Ms. Robinson during
this admission. NYSCEF DOC. NO. 114, at p. 40. At that time, Ms. Robinson was fully dilated and
was close to delivering. NYSCEF DOC. NO. 136, at p. 56. At around 11:22pm, Ms. Robinson was
getting prepared to deliver and was instructed regarding her pushing technique. NYSCEF DOC. NO.
136, at p. 61. At around 11:33pm, Ms. Robinson’s Foley catheter was removed. NYSCEF DOC.
NO. 136, at p. 62.
34. On April 12, 2016, at 11:45pm, Jennifer Stanga, R.N., noted late decelerations and
recurrent decelerations. NYSCEF DOC. NO. 117, at p. 120. At around 11:50pm, she noted that Dr.
Pafos was at the bedside “assessing pushing.” NYSCEF DOC. NO. 117, at p. 120. At around
11:54pm-11:56pm, she held the Pitocin drip and increased the rate of the intravenous fluid, noted
that Ms. Robinson was receiving oxygen via face mask, and turned Ms. Robinson on her left side.
NYSCEF DOC. NO. 117, at p. 120.
35. On April 13, 2016, at around 12am, RN Stanga noted “late decelerations, recurrent
decelerations.” NYSCEF DOC. NO. 117, at p. 120. She testified that the late decelerations lasted
approximately from 11:30pm (April 12, 2016) to 12:07am (April 13, 2016). NYSCEF DOC. NO.
136, at p. 66. She noted that Dr. Pafos was discussing the possibility C-section with Ms. Robinson
and her husband. NYSCEF DOC. NO. 117, at p. 120. At around 12:11am, RN Stanga noted that Dr.
Pafos made the decision to perform the C-section. NYSCEF DOC. NO. 117, at p. 120.
36. On April 13, 2016, at 12:15am, Dr. Pafos noted: “After pushing, deep variable
decels [decelarations] were noted on FHT followed by fetal tachycardia with minimal variability.”
He also noted that the fetal head is in occiput presentation. NYSCEF DOC. NO. 117, at p. 34. He
also noted: “Will move to OR for urgent section.” NYSCEF DOC. NO. 117, at p. 34..
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37. On April 13, 2016, at 12:20am, Ms. Robinson was in the operating room for the C-
section and incision was started at 12:30am. NYSCEF DOC. NO. 117, at p. 4. The operative report
for the C-section lists the following as the pre-operative diagnosis: “nonreassuring fetal heart tracing
in the second stage of labor during the trial of labor following previous caesarian section.” NYSCEF
DOC. NO. 117, at p. 118.
38. During the C-section, an intraoperative consult was called due to bladder injury.
NYSCEF DOC. NO. 117, at p. 485. Omid Rofeim, M.D. subsequently performed a bladder repair.
NYSCEF DOC. NO. 117, at p. 485. Dr. Rofeim noted two urinary bladder openings (cystostomies).
NYSCEF DOC. NO. 141, at p. 31. More specifically, he testified that the vertical opening was a
result of the uterine rupture, and the horizontal opening was from the dissection of the bladder from
the uterus. NYSCEF DOC. NO. 141, at p. 32. A Foley catheter was to be kept in place for 10-14
days as planned. NYSCEF DOC. NO. 141, at p. 33.
39. On April 17, 2016, Ms. Robinson was discharged from LIJMC with instructions to
follow-up with Dr. Nanda as an outpatient. NYSCEF DOC. NO. 117, at p. 9.
C. POST-PARTUM CARE
40. On April 25, 2016, Ms. Robinson saw Dr. Rofeim as an outpatient. NYSCEF DOC.
NO. 146, at p. 1. After reviewing the result of the CT of her pelvis, which showed no evidence of a
bladder leak, he removed her Foley catheter. NYSCEF DOC. NO. 141, at p. 40-41.
41. On April 28, 2016, two weeks after the C-section, Ms. Robinson returned to Deepak
Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos saw her. Exhibit 2, at p. 11;
NYSCEF DOC. NO. 115, at pp. 89-90. Dr. Pafos found nothing remarkable on physical
examination. NYSCEF DOC. NO. 115, at pp. 89-90.
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42. On May 23, 2016, six weeks after the C-section, Ms. Robinson returned to Deepak
Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos saw her. Exhibit 2, at p. 11;
NYSCEF DOC. NO. 115, at pp. 90-91. Dr. Pafos found nothing remarkable on physical examination
and determined that no further follow-up was necessary. NYSCEF DOC. NO. 115, at pp. 90-91.
43. Ms. Robinson still continues to experience urinary frequency and incontinence. as
well as social embarrassment. NYSCEF DOC. NO. 132, at pp. 146-148. She also experiences pain
in her lower abdominal area if she cannot urinate. NYSCEF DOC. NO. 132, at pp. 147.
ARGUMENT
POINT I.
THERE ARE MATERIAL ISSUES OF FACT AS TO
WHETHER THE CONTINUOUS TREATMENT DOCTRINE
APPLIES AS TO THE CLAIMS AGAINST DEFENDANTS
NANDA AND LIJMC.
44. The Appellate Division, Second Department, had held: “The continuous treatment
doctrine tolls the statute of limitations when the course of action which includes the wrongful acts or
omissions has run continuously and is related to the same original condition or complaint.” Cohen v.
Gold, 86 N.Y.S.3d 538, 541 (2d Dep’t 2018). In Cardenales v. Queens-Long Island Medical Group,
the Appellate Division, Second Department, reversing the Supreme Court, Queens County, held:
For all relevant periods up until the time of her death, the decedent was under the
care and treatment of the defendant Queens-Long Island Medical Group, P.C.
(hereinafter the Medical Group.). There existed a relationship between Schapira and
the Medical Group, and Nicolardi and the Medical Group, such that the continuous
treatment of the decedent by the Medical Group serves as a basis for tolling the
statute of limitations. Thus, their respective motions should have been denied.
18 A.D.3d 689 (2d Dep’t 2005) (internal citations omitted). Similarly, in Oviedo v. Weinstein, the
Appellate Division, Second Department, reversing the Supreme Court, Nassau County, held:
Contrary to the Supreme Court’s determination, the plaintiff raised a triable issue of
fact as to whether the services rendered by Weinstein represent continuous treatment
within the meaning of CPLR 241-a, so as to toll the statute of limitations as to
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Salem. The plaintiff presented evidence demonstrating that he was a patient of
Island Dental rather than of Salem individually. Indeed, the plaintiff established that
Weinstein, who was the sole shareholder in Island Dental, considered the plaintiff to
be a patient of Island Dental. After the plaintiff declared his mistrust of Salem,
Weinstein continued to treat the plaintiff for an overdenture and to discuss possible
permanent options with him. Under these circumstances, there are questions of fact
as to whether there existed a relationship between Salem, and Weinstein and Island
Dental, such that the continued treatment of the plaintiff by Weinstein may serve as
a basis for tolling the statute of limitations.
102 A.D.3d 844, 846 (2d Dep’t 2013) (internal citations omitted). Further, in Ryan v. Kountz, the
Appellate Division, Second Department, held:
Although Dr. Kountz did not render any medical services after May 31, 1977,
plaintiff has raised a question of fact as to whether the two doctors jointly treated
Mrs. Ryan as a team prior to May 31, 1977. If Mrs. Ryan was treated by a team of
physicians prior to May 31, 1977 and continued to be treated by a member of that
team after that date, each member of the team is deemed to have constructively
participated in the treatment until its termination.
114 A.D.2d 358, 358-9 (2d Dep’t 1985).
45. Here, as in Cardenales, Oviedo, and Ryan, there are material issues of fact as to
whether the continuous treatment doctrine tolled the statute of limitations on the claims against
defendant Nanda. At the outset, defendants Pafos and Deepak Nanda, M.D., P.C. do not dispute that
the claims against them were filed timely because they did not move on this issue. Furthermore,
there is no dispute here that both defendants Nanda and Pafos were employees of defendant Deepak
Nanda, M.D., P.C. in 2016. NYSCEF DOC. NO. 114, at. p. 14; NYSCEF DOC. NO. 115, at p. 8.
There is also no dispute that it was “typical” for both defendants Nanda and Pafos to see patients on
an alternating basis. NYSCEF DOC. NO. 115, at p. 36. More specifically, defendant Nanda testified
as follows: “In our practice we, both of us saw the patient so that the patient would get familiar with
both of us. So the visits were usually scheduled based on patient’s convenience or availability of
appointments or special need.” NYSCEF DOC. NO. 114, at. p. 42 (emphasis added). Defendant
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Nanda also testified that, in Ms. Robinson’s case, there was an understanding that either he or
defendant Pafos would deliver the baby. NYSCEF DOC. NO. 114, at. p. 42.
46. Similarly, here, as in Cardenales and Oviedo, 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. Additonally, 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 Pafos 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.
47. 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.
IN THE ALTERNATIVE, THE CLAIMS AGAINST
DEFENDANTS NANDA AND LIJMC WERE TIMELY FILED
PURSUANT TO CPLR 203(c).
48. Pursuant to CPLR 203(c), “[in] an action which is commenced by filing, a claim
asserted in the complaint is interposed against the defendant or a co-defendant united in interest
with such defendant when the action is commenced.” In Connell v. Hayden, the Appellate Division,
Second Department, explained this “relation-back” doctrine as contained in this provision:
Where a defendant is served late, the plaintiff's claim will
nevertheless be deemed interposed against him as of the earlier
date upon which a codefendant united in interest with him was
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timely served and the Statute of Limitations will not constitute a
bar to the action. The rationale behind this exception is that where
the two defendants are united in interest their defenses will be the
same and they will either stand or fall together with respect to
plaintiff's claim. Timely service upon one of two such defendants
gives sufficient notice to enable him to investigate all the defenses
which are available to both defendants within the period of
limitations.
83 A.D.2d 30, 41 (2d Dep’t 1981). 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 679. 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 parties share a master-servant or
employer-employee relationship.” 113 A.D.2d 763, 767 (2d Dep’t 1985) (citations omitted).
49. Here, defendant Pafos 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 two 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.
50. 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.
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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.
51. 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
been brought against the party. Id. at 180-181.
52. 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 defendant Pafos and defendants Nanda and LIJMC arose out of the same transaction:
the negligently labor and delivery care provided to her at LIJMC. Second, defendant Nanda is
united in interest with defendant Pafos; and defendant LIJMC is united in interest with defendant
Pafos. By reason of that relationship can be charged with such notice of institution of action that
defendants Nanda and LIJMC will not be prejudiced in maintaining action on merits. Finally, given
the facts of this case as reflected in the medical records, defendants Nanda and LIMC knew or
should have known that the action would have been brought against the party.
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53. Thus, the claims against defendants Nanda and LIJMC were timely filed pursuant to
CPLR 203(c).
POINT III.
DEFENDANTS FAILED TO SHOW THEIR ENTITLEMENT
AS A MATTER OF LAW.
54. It is well settled law that “[t]he proponent of a summary judgment motion must
make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to eliminate any material issues of fact from the case.” Winegrad v. N.Y.U Med. Ctr., 64
N.Y.2d 851, 853 (1985) (internal citations omitted). “Failure to make such showing requires denial
of the motion, regardless of the sufficiency of the opposing papers.” Id. In a medical malpractice
action, the requisite elements of proof are (1) a deviation or departure from accepted practice and (2)
evidence that such departure was a proximate cause of injury or damage. Amsler v. Verrilli 119
A.D.2d 786 (2d Dep’t 1986). Hence, in moving for summary judgment, the defendant must
demonstrate, by the submission of admissible credible evidence, that: (1) there was no departure
from accepted standards of medical care; and/or (2) the alleged departure from accepted standards
of care was not a proximate cause of plaintiff’s injuries. Id.
55. A defendant who moves for summary judgment bears the initial burden of making a
prima facie showing of entitlement to judgment as a matter of law; only where that burden has been
met does the burden shift to the opposing party to come forward with evidentiary proof establishing
the existence of issues of fact. S & S Machinery Corp. v. Hanover Trust Co., 219 A.D.2d 249, 253
(1st Dep’t 1996). Failure on the part of the movant to carry his burden requires denial of the
motion, the sufficiency of the opposing papers notwithstanding. Winegrad, 64 N.Y.2d at 853;
Mango, 123 A.D.2d 843; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Tillmon v. New
York City Housing Auth., 203 A.D.2d 19, 20 (1st Dep’t 1994).
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Preview
FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS --------------------------------------------------------------------X THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiffs, Affirmation in Opposition to - against - Defendants’ Motion for Summary Judgment NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANADA, M.D., and EMMANUEL M. PAFOS, M.D., Defendants. --------------------------------------------------------------------X JAMES S. PAGLINAWAN, ESQ., an attorney duly licensed to practice law in the State of New York, affirms the following to be true under the penalties of perjury and CPLR 2106: 1. I am an attorney at THE PAGLINAWAN FIRM, P.C., attorneys for plaintiffs THERESA ROBINSON and DEREK ROBINSON. As such, I am fully familiar with the facts and circumstances of this action based upon my review of the file maintained by this office in the course of the action herein. This affirmation, along with the annexed exhibits, is submitted in opposition to the motion made on behalf of defendants NORTHWELL HEALTH, INC., LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, M.D., P.C., DEEPAK NANADA, M.D., and EMMANUEL M. PAFOS, M.D. (“Defendants”), for an order granting summary judgment in their favor. 2. Attached are the following exhibits in opposition to Defendants’ motion for summary judgment: EXHIBIT 1: Affidavit from Plaintiff’s expert in Obstetrics and Gynecology1 1 This expert affidavit has been redacted to exclude the name of this medical expert. See Marano v. Mercy Hosp., 21 A.D.2d 48 (2d Dep’t 1998). If required, an unredacted copy of this affirmation will be provided to the Court for an in-camera inspection. Id. 1 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 EXHIBIT 2: Medical records, Deepak Nanda, M.D., P.C. 3. For the reasons stated below, this Court should deny Defendants’ motions. PRELIMINARY STATEMENT 4. The claims against defendants Deepak Nanda, M.D.. Long Island Jewish Medical Center, and Northwell, Inc. were timely commenced based on: (a) the continuous treatment doctrine; and (b) CPLR 203(b). As such, these defendants’ motion to dismiss based on statute of limitations should be denied. 5. Further, Defendants have patently failed to meet their burden of showing their entitlement to a summary judgment. As such, their motions should be denied outright, even without considering Plaintiffs’ expert affirmation in opposition. 6. Finally, 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 Ms. Robinson’s pain and suffering. Therefore, and as a matter of law, this Court should deny Defendants’ motion in view of the material issues of fact that are within the province of the jury to resolve. COUNTERSTATEMENT OF MATERIAL FACTS A. PRE-NATAL CARE 7. On August 26, 2015, plaintiff Theresa Robinson, then 29 years old, initially obtained prenatal care at Long Island Jewish Medical Center, (“LIJMC”) Women for Women Obstetrics & Gynecology. NYSCEF DOC. NO. 116, at p. 49. A sonogram was performed, which showed a gestational age of seven weeks and five days and expected date of delivery (“EDC”) of April 8, 2016. NYSCEF DOC. NO. 116, at p. 50. Her past pregnancy history included: (1) pregnancy in 2 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 2009 resulting to a C-section at 37 weeks for fetal distress; (2) an ectopic pregnancy in 2010. NYSCEF DOC. NO. 116, at p. 50. A follow-up prenatal visit in one month was planned. 8. On September 23, 2015, Ms. Robinson returned to LIJMC for her planned follow-up prenatal visit. NYSCEF DOC. NO. 116, at p. 53. She was noted to be 11 6/7 weeks pregnant. NYSCEF DOC. NO. 116, at p. 53. A follow-up visit in four weeks was planned. NYSCEF DOC. NO. 116, at p. 53. 9. On October 19, 2015, Ms. Robinson again returned to LIJMC for her planned follow-up prenatal visit. NYSCEF DOC. NO. 116, at p. 57. She was noted to be doing well without complaints. NYSCEF DOC. NO. 116, at p. 57. A follow-up visit in four weeks was planned. NYSCEF DOC. NO. 116, at p. 57. 10. On November 18, 2015, Ms. Robinson again returned to LIJMC for her planned follow-up prenatal visit. NYSCEF DOC. NO. 116, at p. 62. She was noted to be 19 6/7 weeks pregnant and without any complaints. NYSCEF DOC. NO. 116, at p. 62. A follow-up visit in one month was planned. NYSCEF DOC. NO. 116, at p. 63. 11. On December 8, 2015, Ms. Robinson’s prenatal care was transferred to Deepak Nanda, M.D., P.C. NYSCEF DOC. NO. 116, at p. 12. She was 22 weeks pregnant. NYSCEF DOC. NO. 116, at p. 12. Deepak Nanda (“Dr. Nanda”) examined her and made no abnormal findings. NYSCEF DOC. NO. 116, at p. 8-9. 12. On December 22, 2015, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Nanda saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to be 24 5/7 weeks pregnant and with “normal anatomy scan.” NYSCEF DOC. NO. 116, at p. 9. A follow-up visit in three to four weeks was planned. NYSCEF DOC. NO. 116, at p. 9. 3 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 13. On January 12, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Emmanuel M. Pafos, M.D. (“Dr. Pafos”) saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to be 27 weeks and five days pregnant with complaints of “patchy itching.” NYSCEF DOC. NO. 116, at pp. 8-9. A follow-up visit in one week was planned. NYSCEF DOC. NO. 116, at p. 9. 14. On January 19, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to be 28 5/7 weeks pregnant and that her “rash markedly improved.” NYSCEF DOC. NO. 116, at pp. 8-9. A follow-up visit in two weeks was planned. NYSCEF DOC. NO. 116, at p. 9. 15. On February 2, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Nanda saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to be 30 5/7 weeks pregnant and with polyhydramnios. NYSCEF DOC. NO. 116, at p. 8-9. A follow-up visit in two weeks was planned. NYSCEF DOC. NO. 116, at p. 9. 16. On February 15, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care. NYSCEF DOC. NO. 116, at p. 8. She was noted to be 32 weeks and five days pregnant. NYSCEF DOC. NO. 116, at p. 8. 17. On March 1, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to be 34 5/7 weeks pregnant and with polyhydramnios. NYSCEF DOC. NO. 116, at pp. 8-9. The BPP [biophysical profile] was noted 10/10. NYSCEF DOC. NO. 116, at p. 9. A follow-up visit in one week was planned. NYSCEF DOC. NO. 116, at p. 9. 18. On March 8, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Pafos saw her. NYSCEF DOC. NO. 116, at p. 8-9. She was noted to 4 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 be 35 5/7 weeks pregnant and with improved polyhydramnios. NYSCEF DOC. NO. 116, at pp. 8-9. The BPP was noted 10/10. NYSCEF DOC. NO. 116, at p. 9. A follow-up visit in one week was planned. NYSCEF DOC. NO. 116, at p. 9. 19. On March 17, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Pafos saw her. Exhibit 2, at p. 5. She was noted to be 37 weeks pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10; the estimated fetal weight (“EFW”) was 3,052 grams; and the amniotic fluid index (“AFI”) level was 25. Exhibit 2, at p. 5. A follow-up visit in one week was planned. Exhibit 2, at p. 5. 20. On March 25, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Pafos saw her. Exhibit 2, at p. 5. She was noted to be 38 weeks pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10. Exhibit 2, at p. 5. A follow-up visit in one week was planned. Exhibit 2, at p. 5. 21. On April 1, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow- up prenatal care. Exhibit 2, at p. 5. She was noted to be 39 weeks pregnant. Exhibit 2, at p. 5. 22. On April 7, 2016, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow- up prenatal care. Exhibit 2, at p. 5. She was noted to be 40 weeks pregnant. Exhibit 2, at p. 5. 23. On April 9, 2016, Ms. Robinson again returned to Deepak Nanda, M.D., P.C. for a follow-up prenatal care and Dr. Nanda saw her. Exhibit 2, at p. 5. She was noted to be 40 2/7 weeks pregnant. Exhibit 2, at p. 5. It was noted that the BPP 10/10. Exhibit 2, at p. 5. A follow-up visit in two to three days was planned. Exhibit 2, at p. 5. 5 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 B. ADMISSION AT LIJMC 24. On April 12, 2016, at around 2am, Ms. Robinson was admitted at LIJMC rupture of membranes. NYSCEF DOC. NO. 117, at p. 19. It was noted that she was gravida 6, para 1, term 1, preterm 0, spontaneous abortion 4, and living child 1. NYSCEF DOC. NO. 117, at p. 19. 25. At 1:10am, Tari Brodsky, N.P. noted that Ms. Robinson was a 29-year-old female with 40.4 gestational age complaining of leaking clear fluid since 11pm with mild contractions. NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted that the external fetal monitor (“EFM”) showed a rate of 135 with moderate variability, accelerations, and two episodes of late decelerations. NYSCEF DOC. NO. 117, at p. 33. N.P. Brodsky noted that Ms. Robinson had mild uterine contractions. NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted a previous history of C- section in 2009 and documented her vaginal examination findings as follow: 1/2 centimeter [effacement], 70% [dilation], and -3 [station]. NYSCEF DOC. NO. 117, at p. 33. NP Brodsky noted the plan of care was discussed with Dr. Nanda, which included TOLAC. NYSCEF DOC. NO. 117, at p. 33. 26. At 1:42am, Lemile Ricanor, R.N. (“R.N. Ricanor”) noted a pain level of 6/10. NYSCEF DOC. NO. 117, at p. 125. 27. At 3:49am, Grace Chow, M.D. (a PGY-1 resident) documented her vaginal examination findings as follow: 1 cm effacement, 70% dilatation, and -3 station. NYSCEF DOC. NO. 117, at p. 33. Dr. Chow noted that Ms. Robinson had an order for morphine for pain control. NYSCEF DOC. NO. 117, at p. 33. 28. On April 12, 2016, at around 12:21pm, Leat Mechlovitz, M.D. noted that the plan of care was discussed with Dr. Nanda, which included a placement of a cervical balloon and administering Pitocin as needed. NYSCEF DOC. NO. 117, at p. 33-34. At around 1:17pm, Dr. 6 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 Mechlovitz noted that the cervical balloon had been inserted, and that the vaginal examination showed the following: 1-2 cm. effacement, 90 percent dilatation, and -2 station, NYSCEF DOC. NO. 117, at p. 33-34. 29. On April 12, 2016, at around 5:17pm, Krista Neal, M.D. that the vaginal examination showed the following: 3-4 cm. effacement, 70 percent dilatation, and -2 station, NYSCEF DOC. NO. 117, at p. 34. Dr. Neal documented that the contractions were occurring irregularly every six minutes and that she had discussed with Dr. Nanda the plan to start Ms. Robinson “on low dose pitocin” drip. NYSCEF DOC. NO. 117, at p. 34. 30. On April 12, 2016, at around 6:13pm, Dr. Mechlovitz noted, on vaginal examination, 3-4 cm effacement, 90 percent dilatation, and -2 station. NYSCEF DOC. NO. 117, at p. 34. She noted that the cervical balloon was removed. NYSCEF DOC. NO. 117, at p. 34. She assigned a category I to the EFM readings. NYSCEF DOC. NO. 117, at p. 34. She noted: “We are to proceed with Pitocin and epidural prn [as needed].” NYSCEF DOC. NO. 117, at p. 34. 31. On April 12, 2016, at around 9:32pm, Jennifer Stanga, R.N., increased the Pitocin drip from 4 milliunits/minute to 5 milliunits/minute. NYSCEF DOC. NO. 136, at p. 37. At around 9:54pm, she increased the Pitocin drip from 5 milliunits/minute to 6 milliunits/minute. NYSCEF DOC. NO. 136, at p. 42. At 10:14pm, she noted late decelerations but did not notify any doctors. NYSCEF DOC. NO. 136, at p. 45. Nor did she decrease the dose of the Pitocin drip. NYSCEF DOC. NO. 136, at p. 42. She also neither turned nor gave supplemental oxygen to Ms. Robinson. NYSCEF DOC. NO. 136, at pp. 45-45. 32. On April 12, 2016, at 10:51pm, RN Stanga noted that Ms. Robinson was noted to be 10 centimeter dilated with -1 station. NYSCEF DOC. NO. 117, at p. 118. 7 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 33. On April 12, 2016, at around 10:55pm, Dr. Pafos first treated Ms. Robinson during this admission. NYSCEF DOC. NO. 114, at p. 40. At that time, Ms. Robinson was fully dilated and was close to delivering. NYSCEF DOC. NO. 136, at p. 56. At around 11:22pm, Ms. Robinson was getting prepared to deliver and was instructed regarding her pushing technique. NYSCEF DOC. NO. 136, at p. 61. At around 11:33pm, Ms. Robinson’s Foley catheter was removed. NYSCEF DOC. NO. 136, at p. 62. 34. On April 12, 2016, at 11:45pm, Jennifer Stanga, R.N., noted late decelerations and recurrent decelerations. NYSCEF DOC. NO. 117, at p. 120. At around 11:50pm, she noted that Dr. Pafos was at the bedside “assessing pushing.” NYSCEF DOC. NO. 117, at p. 120. At around 11:54pm-11:56pm, she held the Pitocin drip and increased the rate of the intravenous fluid, noted that Ms. Robinson was receiving oxygen via face mask, and turned Ms. Robinson on her left side. NYSCEF DOC. NO. 117, at p. 120. 35. On April 13, 2016, at around 12am, RN Stanga noted “late decelerations, recurrent decelerations.” NYSCEF DOC. NO. 117, at p. 120. She testified that the late decelerations lasted approximately from 11:30pm (April 12, 2016) to 12:07am (April 13, 2016). NYSCEF DOC. NO. 136, at p. 66. She noted that Dr. Pafos was discussing the possibility C-section with Ms. Robinson and her husband. NYSCEF DOC. NO. 117, at p. 120. At around 12:11am, RN Stanga noted that Dr. Pafos made the decision to perform the C-section. NYSCEF DOC. NO. 117, at p. 120. 36. On April 13, 2016, at 12:15am, Dr. Pafos noted: “After pushing, deep variable decels [decelarations] were noted on FHT followed by fetal tachycardia with minimal variability.” He also noted that the fetal head is in occiput presentation. NYSCEF DOC. NO. 117, at p. 34. He also noted: “Will move to OR for urgent section.” NYSCEF DOC. NO. 117, at p. 34.. 8 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 37. On April 13, 2016, at 12:20am, Ms. Robinson was in the operating room for the C- section and incision was started at 12:30am. NYSCEF DOC. NO. 117, at p. 4. The operative report for the C-section lists the following as the pre-operative diagnosis: “nonreassuring fetal heart tracing in the second stage of labor during the trial of labor following previous caesarian section.” NYSCEF DOC. NO. 117, at p. 118. 38. During the C-section, an intraoperative consult was called due to bladder injury. NYSCEF DOC. NO. 117, at p. 485. Omid Rofeim, M.D. subsequently performed a bladder repair. NYSCEF DOC. NO. 117, at p. 485. Dr. Rofeim noted two urinary bladder openings (cystostomies). NYSCEF DOC. NO. 141, at p. 31. More specifically, he testified that the vertical opening was a result of the uterine rupture, and the horizontal opening was from the dissection of the bladder from the uterus. NYSCEF DOC. NO. 141, at p. 32. A Foley catheter was to be kept in place for 10-14 days as planned. NYSCEF DOC. NO. 141, at p. 33. 39. On April 17, 2016, Ms. Robinson was discharged from LIJMC with instructions to follow-up with Dr. Nanda as an outpatient. NYSCEF DOC. NO. 117, at p. 9. C. POST-PARTUM CARE 40. On April 25, 2016, Ms. Robinson saw Dr. Rofeim as an outpatient. NYSCEF DOC. NO. 146, at p. 1. After reviewing the result of the CT of her pelvis, which showed no evidence of a bladder leak, he removed her Foley catheter. NYSCEF DOC. NO. 141, at p. 40-41. 41. On April 28, 2016, two weeks after the C-section, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos saw her. Exhibit 2, at p. 11; NYSCEF DOC. NO. 115, at pp. 89-90. Dr. Pafos found nothing remarkable on physical examination. NYSCEF DOC. NO. 115, at pp. 89-90. 9 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 42. On May 23, 2016, six weeks after the C-section, Ms. Robinson returned to Deepak Nanda, M.D., P.C. for a follow-up post-partum care and Dr. Pafos saw her. Exhibit 2, at p. 11; NYSCEF DOC. NO. 115, at pp. 90-91. Dr. Pafos found nothing remarkable on physical examination and determined that no further follow-up was necessary. NYSCEF DOC. NO. 115, at pp. 90-91. 43. Ms. Robinson still continues to experience urinary frequency and incontinence. as well as social embarrassment. NYSCEF DOC. NO. 132, at pp. 146-148. She also experiences pain in her lower abdominal area if she cannot urinate. NYSCEF DOC. NO. 132, at pp. 147. ARGUMENT POINT I. THERE ARE MATERIAL ISSUES OF FACT AS TO WHETHER THE CONTINUOUS TREATMENT DOCTRINE APPLIES AS TO THE CLAIMS AGAINST DEFENDANTS NANDA AND LIJMC. 44. The Appellate Division, Second Department, had held: “The continuous treatment doctrine tolls the statute of limitations when the course of action which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint.” Cohen v. Gold, 86 N.Y.S.3d 538, 541 (2d Dep’t 2018). In Cardenales v. Queens-Long Island Medical Group, the Appellate Division, Second Department, reversing the Supreme Court, Queens County, held: For all relevant periods up until the time of her death, the decedent was under the care and treatment of the defendant Queens-Long Island Medical Group, P.C. (hereinafter the Medical Group.). There existed a relationship between Schapira and the Medical Group, and Nicolardi and the Medical Group, such that the continuous treatment of the decedent by the Medical Group serves as a basis for tolling the statute of limitations. Thus, their respective motions should have been denied. 18 A.D.3d 689 (2d Dep’t 2005) (internal citations omitted). Similarly, in Oviedo v. Weinstein, the Appellate Division, Second Department, reversing the Supreme Court, Nassau County, held: Contrary to the Supreme Court’s determination, the plaintiff raised a triable issue of fact as to whether the services rendered by Weinstein represent continuous treatment within the meaning of CPLR 241-a, so as to toll the statute of limitations as to 10 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 Salem. The plaintiff presented evidence demonstrating that he was a patient of Island Dental rather than of Salem individually. Indeed, the plaintiff established that Weinstein, who was the sole shareholder in Island Dental, considered the plaintiff to be a patient of Island Dental. After the plaintiff declared his mistrust of Salem, Weinstein continued to treat the plaintiff for an overdenture and to discuss possible permanent options with him. Under these circumstances, there are questions of fact as to whether there existed a relationship between Salem, and Weinstein and Island Dental, such that the continued treatment of the plaintiff by Weinstein may serve as a basis for tolling the statute of limitations. 102 A.D.3d 844, 846 (2d Dep’t 2013) (internal citations omitted). Further, in Ryan v. Kountz, the Appellate Division, Second Department, held: Although Dr. Kountz did not render any medical services after May 31, 1977, plaintiff has raised a question of fact as to whether the two doctors jointly treated Mrs. Ryan as a team prior to May 31, 1977. If Mrs. Ryan was treated by a team of physicians prior to May 31, 1977 and continued to be treated by a member of that team after that date, each member of the team is deemed to have constructively participated in the treatment until its termination. 114 A.D.2d 358, 358-9 (2d Dep’t 1985). 45. Here, as in Cardenales, Oviedo, and Ryan, there are material issues of fact as to whether the continuous treatment doctrine tolled the statute of limitations on the claims against defendant Nanda. At the outset, defendants Pafos and Deepak Nanda, M.D., P.C. do not dispute that the claims against them were filed timely because they did not move on this issue. Furthermore, there is no dispute here that both defendants Nanda and Pafos were employees of defendant Deepak Nanda, M.D., P.C. in 2016. NYSCEF DOC. NO. 114, at. p. 14; NYSCEF DOC. NO. 115, at p. 8. There is also no dispute that it was “typical” for both defendants Nanda and Pafos to see patients on an alternating basis. NYSCEF DOC. NO. 115, at p. 36. More specifically, defendant Nanda testified as follows: “In our practice we, both of us saw the patient so that the patient would get familiar with both of us. So the visits were usually scheduled based on patient’s convenience or availability of appointments or special need.” NYSCEF DOC. NO. 114, at. p. 42 (emphasis added). Defendant 11 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 Nanda also testified that, in Ms. Robinson’s case, there was an understanding that either he or defendant Pafos would deliver the baby. NYSCEF DOC. NO. 114, at. p. 42. 46. Similarly, here, as in Cardenales and Oviedo, 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. Additonally, 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 Pafos 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. 47. 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. IN THE ALTERNATIVE, THE CLAIMS AGAINST DEFENDANTS NANDA AND LIJMC WERE TIMELY FILED PURSUANT TO CPLR 203(c). 48. Pursuant to CPLR 203(c), “[in] an action which is commenced by filing, a claim asserted in the complaint is interposed against the defendant or a co-defendant united in interest with such defendant when the action is commenced.” In Connell v. Hayden, the Appellate Division, Second Department, explained this “relation-back” doctrine as contained in this provision: Where a defendant is served late, the plaintiff's claim will nevertheless be deemed interposed against him as of the earlier date upon which a codefendant united in interest with him was 12 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 timely served and the Statute of Limitations will not constitute a bar to the action. The rationale behind this exception is that where the two defendants are united in interest their defenses will be the same and they will either stand or fall together with respect to plaintiff's claim. Timely service upon one of two such defendants gives sufficient notice to enable him to investigate all the defenses which are available to both defendants within the period of limitations. 83 A.D.2d 30, 41 (2d Dep’t 1981). 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 679. 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 parties share a master-servant or employer-employee relationship.” 113 A.D.2d 763, 767 (2d Dep’t 1985) (citations omitted). 49. Here, defendant Pafos 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 two 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. 50. 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. 13 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 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. 51. 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 been brought against the party. Id. at 180-181. 52. 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 defendant Pafos and defendants Nanda and LIJMC arose out of the same transaction: the negligently labor and delivery care provided to her at LIJMC. Second, defendant Nanda is united in interest with defendant Pafos; and defendant LIJMC is united in interest with defendant Pafos. By reason of that relationship can be charged with such notice of institution of action that defendants Nanda and LIJMC will not be prejudiced in maintaining action on merits. Finally, given the facts of this case as reflected in the medical records, defendants Nanda and LIMC knew or should have known that the action would have been brought against the party. 14 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199 RECEIVED NYSCEF: 08/18/2021 02/08/2022 53. Thus, the claims against defendants Nanda and LIJMC were timely filed pursuant to CPLR 203(c). POINT III. DEFENDANTS FAILED TO SHOW THEIR ENTITLEMENT AS A MATTER OF LAW. 54. It is well settled law that “[t]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” Winegrad v. N.Y.U Med. Ctr., 64 N.Y.2d 851, 853 (1985) (internal citations omitted). “Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers.” Id. In a medical malpractice action, the requisite elements of proof are (1) a deviation or departure from accepted practice and (2) evidence that such departure was a proximate cause of injury or damage. Amsler v. Verrilli 119 A.D.2d 786 (2d Dep’t 1986). Hence, in moving for summary judgment, the defendant must demonstrate, by the submission of admissible credible evidence, that: (1) there was no departure from accepted standards of medical care; and/or (2) the alleged departure from accepted standards of care was not a proximate cause of plaintiff’s injuries. Id. 55. A defendant who moves for summary judgment bears the initial burden of making a prima facie showing of entitlement to judgment as a matter of law; only where that burden has been met does the burden shift to the opposing party to come forward with evidentiary proof establishing the existence of issues of fact. S & S Machinery Corp. v. Hanover Trust Co., 219 A.D.2d 249, 253 (1st Dep’t 1996). Failure on the part of the movant to carry his burden requires denial of the motion, the sufficiency of the opposing papers notwithstanding. Winegrad, 64 N.Y.2d at 853; Mango, 123 A.D.2d 843; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986); Tillmon v. New York City Housing Auth., 203 A.D.2d 19, 20 (1st Dep’t 1994). 15 of 22 FILED: QUEENS COUNTY CLERK 08/04/2021 02/08/2022 04:54 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 150 199