Preview
FILED: QUEENS COUNTY CLERK 08/24/2021
02/08/2022 04:58
05:10 PM INDEX NO. 717964/2018
NYSCEF DOC. NO. 164
200 RECEIVED NYSCEF: 08/24/2021
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,
REPLY
AFFIRMATION
-against- IN SUPPORT OF MOTION
NORTHWELL HEALTH, INC, LONG ISLAND
JEWISH MEDICAL CENTER, DEEPAK NANDA,
MD, PC, DEEPAK NANDA M.D., EMMANUEL
M. PAFOS, M.D.
Defendants.
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Anthony Xanthakis, Esq., an attorneys at law, duly licensed in the State of New York,
affirms the following under penalty of perjury:
1. I am a member of Galvano & Xanthakis PC and as such I am fully familiar with the
facts and circumstances of this case.
2. I submit this reply affirmation in support of defendant, EMMANUEL M. PAFOS
MD’s motion for summary judgment, pursuant to CPLR 3212, dismissing plaintiff’s complaint
and for such other and further relief which this court deems just and proper.
PLAINTIFFS PRESENT NEW THEORIES WHICH ARE IMPROPER AT THIS STAGE
AND WHICH CANNOT DEFEAT SUMMARY JUDGMENT
3. A careful review of the Bill of Particulars (Exhibit E, Pafos Motion for Summary
Judgment ECF Doc 111) reveals that the phrase “Cephalopelvic Disproportion (“CPD)” doesn’t
appear, anywhere. Further, after a careful review of every single deposition taken in this case, the
phrase “Cephalopelvic Disproportion (CPD)” doesn’t appear, neither in a question or an answer.
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4. Plaintiffs, for the very first time have introduced this phrase as their theory of
negligence in this case. In fact, it now appears for the very first time, in opposition to summary
judgment, to be their main theory of negligence.
5. Plaintiffs’ expert further opines about a failure to perform a Mueller-Hillis maneuver. .
(Exhibit 1, plaintiff’s expert affidavit, paragraph 42, ECF Doc # 151). Again, neither the phrase
Mueller-Hillis or any suggestion of the maneuver by description appears in plaintiff’s bill of
particulars or in any question or answer at a deposition. This is a brand new theory put forward
by the plaintiffs in response to this summary judgment motion.
6. Likewise and related to “Cephalopelvic Disproportion (CPD)” an allegation of
misadministration of Pitocin now appears for the very first time as plaintiffs’ theory of
negligence in the case. Plaintiffs now allege through expert affidavit, for the first time in
opposition to summary judgment, that administration of Pitocin to the plaintiff was
contraindicated. (Exhibit 1, plaintiff’s expert affidavit, paragraph 40, ECF Doc # 151).
7. Plaintiffs declined to answer any question in the Bill of Particulars related to a theory
of negligence concerning the administration of contraindicated drugs. (Exhibit E, Pafos Motion
for Summary Judgment, Question 7(d) and (e), ECF Doc # 111.)
8. In carefully reviewing plaintiffs’ Bill of Particulars, nowhere do they indicate, in any
response, that administration of Pitocin was contraindicated. In fact, the word Pitocin does not
appear in the Bill of Particulars to defendant, Pafos, or for that matter any defendant in this case.
9. Defendants, in their collective motions for summary judgment addressed and
responded to each alleged theory of negligence plead by the plaintiffs. They had their expert
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witnesses address these plead theories, in the only opportunity they have to do so, in support of
their motions for summary judgment. What defendants’ experts cannot do and what is unfair to
expect them to do is address new theories plaintiff may put forth after the motion is made. It is
for this reason that a Bill of Particulars is there, to limit surprise and prejudice to those relying on
the Bill of Particulars.
10. It is a point well-established in the law that new theories cannot be introduced in an
attempt to defeat a motion for summary judgment. A review of the plaintiff’s Bill of Particulars
and Supplemental Bill of Particulars, as well as the Verified Complaint, reveals absolutely no
reference to the propriety of the administration of Pitocin, a drug utilized to increase and
strengthen contractions. Yet, the crux of the plaintiff’s expert’s opinions and plaintiff’s
argument, is the movant’s alleged negligence in the administration of this medication. Setting
aside the fact that the movants established that this was a private patient, the order for Pitocin
was made with the approval of the patient’s private attending, Dr. Nanda.
11. Plaintiff also for the first time alleges that the movants failed to assess for CPD
(Cephalopelvic Disproportion). Again, nowhere in the Verified Complaint, Bill of Particulars or
Supplemental Bill of Particulars, was there any allegation of a failure to diagnose such a
condition or even any remote reference to the size of the baby’s head or to the plaintiff’s pelvis.
12. In addition to the above new theories, plaintiff again for the first time alleges that the
defendants failed to perform the Mueller-Hillis maneuver required to diagnose CPD. This was
yet another allegation which was never mentioned in any pleading and was first alleged in this
opposition.
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13. The Appellate Division, Second Department reaffirmed the longstanding principle
that a plaintiff cannot raise a new theory of liability in opposition to a motion for summary
judgment if that theory is not contained within the complaint or bill of particulars. (See Palka v.
Village of Ossining, 120 A.D.3d 641 (2d Dep’t 2014). It is also axiomatic that a plaintiff cannot
defeat a summary judgment motion that made out a prima facie case by merely asserting,
without more, a new theory of liability for the first time in the opposition papers. (See Biondi v.
Behrman, 149 A.D.3d 562 (1st Dep’t 2017) (defendants had no notice of plaintiff’s new claims
which were never mentioned in the pleadings.)
14. Here it is evident based on the pleadings that the plaintiff had every intention to
prosecute this case as a contraindicated VBAC/TOLAC, a delay in performing a cesarean
section, an improperly performed cesarean section, as well as an alleged failure of hospital staff
to notify the attendings of abnormal fetal findings. Nowhere in the pleadings is there any
allegation of improper administration of Pitocin, failure to administer any maneuvers or to
diagnose CPD. In fact, those words are even contained in any of the pleadings. Consequently, for
plaintiff to suggest that the movants’ expert failed to address these new theories, raised for the
first time, is incredulous. Notwithstanding Dr. Lupin opined to a reasonable degree of medical
certainty that there were no deviations with regard to the movant’s care, without any notice of
these new allegations, there was no reason for the expert to address these new theories. It is not
the defendants’ obligation to predict plaintiff’s new theories of liability that were never alleged at
any point during the life of this lawsuit.
15. Further, plaintiff’s Bill of Particulars and Supplemental Bill of Particulars, even in
their boilerplate state, focused on the timing of the cesarean section and whether same was
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indicated and VBAC/TOLAC contraindicated. Dr. Lupin already addressed the defendants’ care.
The expert opined that the care was appropriate, and painstakingly addressed the specific
allegations that plaintiff actually alleged in the Bill of Particulars and that the movant had notice
of. Given that this is the first time the above theories were raised, any opinions in this regard
should be completely disregarded by this Court. Any other treatment by this Court, would be
entirely prejudicial and would contravene the very purpose a Bill of Particulars is intended to
avoid, i.e., the element of surprise.
16. The purpose of a Bill of Particulars is to amplify the pleadings, limit the proof and
prevent surprise at trial.” Accordingly, a Bill of Particulars “must clearly detail the specific acts
of negligence attributed to each defendant. (See Myers v. Community Gen. Hosp. of Sullivan
County, 51 A.D.3d 1359 (3d Dep’t 2008); Laukaitis v. Ski Shop, 202 A.D.2D 554 (2d Dep’t
1994). Here, the plaintiff amplified the allegations in their underlying pleadings that the
allegations were about the timing and performance of a cesarean section and whether a
VBAC/TOLAC was contraindicated and should have been attempted, and whether hospital staff
timely notified the attendings of fetal abnormalities and timely and appropriately intervened.
Nowhere in the pleadings is there any allegation of improper administration of Pitocin, a failure
to administer any maneuvers or to diagnose CPD. In fact, at the deposition of the attending
physicians, the plaintiff did not explore the propriety of the administration of the medication,
other than confirming it was ordered and administered. Plaintiff also never inquired of a single
witness regarding CPD or the maneuver required to supposedly diagnose same. Plaintiff is not
permitted to surprise the movants with new allegations in their opposition to a motion for
summary judgment, well beyond the close of discovery.
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17. Consequently, this Court should completely disregard any arguments or opinions
regarding improper administration of Pitocin, failure to administer any maneuvers to diagnose
CPD. This is completely prejudicial and cannot be used to create an issue of fact to defeat this
motion.
PLAINTIFFS HAVE ABANDONED HER CAUSE OF ACTION FOR LACK OF
INFORMED CONSENT BY NOT ADDRESSING IT IN THEIR OPPOSITION TO
SUMMARY JUDGMENT
18. Plaintiff’s Second Cause of Action in her complaint alleges lack of informed consent.
In Plaintiff’s Bill of Particulars lack of informed consent was a central theory put forth by
plaintiff. Defendants’ experts and affirmations in support of motions for summary judgment by
counsel address the lack of informed consent theory specifically and at length, finding the
existence of informed consent, or that no consent was required given the emergent nature of the
required C-section plaintiff underwent. Curiously, neither plaintiff’s expert nor plaintiff’s
counsel address lack of informed consent in any way. As plaintiff has failed to show a material
issue of fact or even address the issue of lack of informed consent, that cause of action should be
dismissed.
PLAINTIFF’S EXPERT AFFIRMATION FAILS TO STATE WHEN SHE SUSTAINED
A UTERINE RUPTURE
19. It is undisputed by all parties that plaintiff sustained a uterine rupture. What
plaintiff’s expert fails to address is when a uterine rupture occurred. Dr. Pafos was first at
plaintiff’s bedside and treating her in LIJ at 10:55pm on April 12, 2016. Plaintiff’s expert cites
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this fact in his affidavit at paragraph 29. (Exhibit 1, plaintiff’s opposition, expert affidavit,
paragraph 29, ECF Doc # 151). Plaintiff’s expert opines that at this point she was “fully dilated
and close to delivering.” Id. In fact she was in labor for hours, and had been administered
Pitocin for hours.
20. As Dr. Pafos started his treatment at 10:55pm according to plaintiff’s expert, it is
incumbent on plaintiff to affirmatively state that the ruptured uterus occurred after his treatment
began. If negligent treatment was indeed a cause of plaintiff’s ruptured uterus, at least with
respect to Dr. Pafos it would have had to occur after his treatment. Plaintiff fails to address this.
It is purely a guess as to when the ruptured uterus occurred. Plaintiff should not be permitted to
guess that it occurred only after Dr. Pafos’ treatment started, far into the labor process. No party
disputes that a ruptured uterus is a rare, but known complication of a TOLAC. As Dr. Lupin
addressed in his expert affirmation:
“As to the cause of the uterine rupture, it is my opinion that the
mechanism of the rupture cannot be precisely identified. Dr. Pafos testified that he
encountered it intraoperatively and that the bladder was also stuck to the anterior
uterus. My review of the copious charting by the nurses and the physicians reveal
no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury
to organs in the abdomen and pelvic area are known risks of a TOLAC.”
(Exhibit A, Suppl. Affirmation in Support of Motion, Defendant Pafos, ECF Doc# 149,
paragraph 10).
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WHEREFORE, the undersigned respectfully submits that the motion of defendant,
Emmanuel M. Pafos MD, for summary judgment pursuant to CPLR 3212 should be granted,
dismissing plaintiffs’ complaint.
Respectfully Submitted,
Anthony Xanthakis
Anthony Xanthakis
I, Anthony Xanthakis Esq., certify that this Reply Affirmation complies with the word
count and page count limits as set forth in the Uniform Civil Rules for the Supreme Court Rule
202.8-b. The Reply Affirmation contains 2000 words.
Anthony Xanthakis
Anthony Xanthakis
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Preview
FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 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, REPLY AFFIRMATION -against- IN SUPPORT OF MOTION NORTHWELL HEALTH, INC, LONG ISLAND JEWISH MEDICAL CENTER, DEEPAK NANDA, MD, PC, DEEPAK NANDA M.D., EMMANUEL M. PAFOS, M.D. Defendants. ---------------------------------------------------------------------x Anthony Xanthakis, Esq., an attorneys at law, duly licensed in the State of New York, affirms the following under penalty of perjury: 1. I am a member of Galvano & Xanthakis PC and as such I am fully familiar with the facts and circumstances of this case. 2. I submit this reply affirmation in support of defendant, EMMANUEL M. PAFOS MD’s motion for summary judgment, pursuant to CPLR 3212, dismissing plaintiff’s complaint and for such other and further relief which this court deems just and proper. PLAINTIFFS PRESENT NEW THEORIES WHICH ARE IMPROPER AT THIS STAGE AND WHICH CANNOT DEFEAT SUMMARY JUDGMENT 3. A careful review of the Bill of Particulars (Exhibit E, Pafos Motion for Summary Judgment ECF Doc 111) reveals that the phrase “Cephalopelvic Disproportion (“CPD)” doesn’t appear, anywhere. Further, after a careful review of every single deposition taken in this case, the phrase “Cephalopelvic Disproportion (CPD)” doesn’t appear, neither in a question or an answer. 1 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 4. Plaintiffs, for the very first time have introduced this phrase as their theory of negligence in this case. In fact, it now appears for the very first time, in opposition to summary judgment, to be their main theory of negligence. 5. Plaintiffs’ expert further opines about a failure to perform a Mueller-Hillis maneuver. . (Exhibit 1, plaintiff’s expert affidavit, paragraph 42, ECF Doc # 151). Again, neither the phrase Mueller-Hillis or any suggestion of the maneuver by description appears in plaintiff’s bill of particulars or in any question or answer at a deposition. This is a brand new theory put forward by the plaintiffs in response to this summary judgment motion. 6. Likewise and related to “Cephalopelvic Disproportion (CPD)” an allegation of misadministration of Pitocin now appears for the very first time as plaintiffs’ theory of negligence in the case. Plaintiffs now allege through expert affidavit, for the first time in opposition to summary judgment, that administration of Pitocin to the plaintiff was contraindicated. (Exhibit 1, plaintiff’s expert affidavit, paragraph 40, ECF Doc # 151). 7. Plaintiffs declined to answer any question in the Bill of Particulars related to a theory of negligence concerning the administration of contraindicated drugs. (Exhibit E, Pafos Motion for Summary Judgment, Question 7(d) and (e), ECF Doc # 111.) 8. In carefully reviewing plaintiffs’ Bill of Particulars, nowhere do they indicate, in any response, that administration of Pitocin was contraindicated. In fact, the word Pitocin does not appear in the Bill of Particulars to defendant, Pafos, or for that matter any defendant in this case. 9. Defendants, in their collective motions for summary judgment addressed and responded to each alleged theory of negligence plead by the plaintiffs. They had their expert 2 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 witnesses address these plead theories, in the only opportunity they have to do so, in support of their motions for summary judgment. What defendants’ experts cannot do and what is unfair to expect them to do is address new theories plaintiff may put forth after the motion is made. It is for this reason that a Bill of Particulars is there, to limit surprise and prejudice to those relying on the Bill of Particulars. 10. It is a point well-established in the law that new theories cannot be introduced in an attempt to defeat a motion for summary judgment. A review of the plaintiff’s Bill of Particulars and Supplemental Bill of Particulars, as well as the Verified Complaint, reveals absolutely no reference to the propriety of the administration of Pitocin, a drug utilized to increase and strengthen contractions. Yet, the crux of the plaintiff’s expert’s opinions and plaintiff’s argument, is the movant’s alleged negligence in the administration of this medication. Setting aside the fact that the movants established that this was a private patient, the order for Pitocin was made with the approval of the patient’s private attending, Dr. Nanda. 11. Plaintiff also for the first time alleges that the movants failed to assess for CPD (Cephalopelvic Disproportion). Again, nowhere in the Verified Complaint, Bill of Particulars or Supplemental Bill of Particulars, was there any allegation of a failure to diagnose such a condition or even any remote reference to the size of the baby’s head or to the plaintiff’s pelvis. 12. In addition to the above new theories, plaintiff again for the first time alleges that the defendants failed to perform the Mueller-Hillis maneuver required to diagnose CPD. This was yet another allegation which was never mentioned in any pleading and was first alleged in this opposition. 3 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 13. The Appellate Division, Second Department reaffirmed the longstanding principle that a plaintiff cannot raise a new theory of liability in opposition to a motion for summary judgment if that theory is not contained within the complaint or bill of particulars. (See Palka v. Village of Ossining, 120 A.D.3d 641 (2d Dep’t 2014). It is also axiomatic that a plaintiff cannot defeat a summary judgment motion that made out a prima facie case by merely asserting, without more, a new theory of liability for the first time in the opposition papers. (See Biondi v. Behrman, 149 A.D.3d 562 (1st Dep’t 2017) (defendants had no notice of plaintiff’s new claims which were never mentioned in the pleadings.) 14. Here it is evident based on the pleadings that the plaintiff had every intention to prosecute this case as a contraindicated VBAC/TOLAC, a delay in performing a cesarean section, an improperly performed cesarean section, as well as an alleged failure of hospital staff to notify the attendings of abnormal fetal findings. Nowhere in the pleadings is there any allegation of improper administration of Pitocin, failure to administer any maneuvers or to diagnose CPD. In fact, those words are even contained in any of the pleadings. Consequently, for plaintiff to suggest that the movants’ expert failed to address these new theories, raised for the first time, is incredulous. Notwithstanding Dr. Lupin opined to a reasonable degree of medical certainty that there were no deviations with regard to the movant’s care, without any notice of these new allegations, there was no reason for the expert to address these new theories. It is not the defendants’ obligation to predict plaintiff’s new theories of liability that were never alleged at any point during the life of this lawsuit. 15. Further, plaintiff’s Bill of Particulars and Supplemental Bill of Particulars, even in their boilerplate state, focused on the timing of the cesarean section and whether same was 4 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 indicated and VBAC/TOLAC contraindicated. Dr. Lupin already addressed the defendants’ care. The expert opined that the care was appropriate, and painstakingly addressed the specific allegations that plaintiff actually alleged in the Bill of Particulars and that the movant had notice of. Given that this is the first time the above theories were raised, any opinions in this regard should be completely disregarded by this Court. Any other treatment by this Court, would be entirely prejudicial and would contravene the very purpose a Bill of Particulars is intended to avoid, i.e., the element of surprise. 16. The purpose of a Bill of Particulars is to amplify the pleadings, limit the proof and prevent surprise at trial.” Accordingly, a Bill of Particulars “must clearly detail the specific acts of negligence attributed to each defendant. (See Myers v. Community Gen. Hosp. of Sullivan County, 51 A.D.3d 1359 (3d Dep’t 2008); Laukaitis v. Ski Shop, 202 A.D.2D 554 (2d Dep’t 1994). Here, the plaintiff amplified the allegations in their underlying pleadings that the allegations were about the timing and performance of a cesarean section and whether a VBAC/TOLAC was contraindicated and should have been attempted, and whether hospital staff timely notified the attendings of fetal abnormalities and timely and appropriately intervened. Nowhere in the pleadings is there any allegation of improper administration of Pitocin, a failure to administer any maneuvers or to diagnose CPD. In fact, at the deposition of the attending physicians, the plaintiff did not explore the propriety of the administration of the medication, other than confirming it was ordered and administered. Plaintiff also never inquired of a single witness regarding CPD or the maneuver required to supposedly diagnose same. Plaintiff is not permitted to surprise the movants with new allegations in their opposition to a motion for summary judgment, well beyond the close of discovery. 5 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 17. Consequently, this Court should completely disregard any arguments or opinions regarding improper administration of Pitocin, failure to administer any maneuvers to diagnose CPD. This is completely prejudicial and cannot be used to create an issue of fact to defeat this motion. PLAINTIFFS HAVE ABANDONED HER CAUSE OF ACTION FOR LACK OF INFORMED CONSENT BY NOT ADDRESSING IT IN THEIR OPPOSITION TO SUMMARY JUDGMENT 18. Plaintiff’s Second Cause of Action in her complaint alleges lack of informed consent. In Plaintiff’s Bill of Particulars lack of informed consent was a central theory put forth by plaintiff. Defendants’ experts and affirmations in support of motions for summary judgment by counsel address the lack of informed consent theory specifically and at length, finding the existence of informed consent, or that no consent was required given the emergent nature of the required C-section plaintiff underwent. Curiously, neither plaintiff’s expert nor plaintiff’s counsel address lack of informed consent in any way. As plaintiff has failed to show a material issue of fact or even address the issue of lack of informed consent, that cause of action should be dismissed. PLAINTIFF’S EXPERT AFFIRMATION FAILS TO STATE WHEN SHE SUSTAINED A UTERINE RUPTURE 19. It is undisputed by all parties that plaintiff sustained a uterine rupture. What plaintiff’s expert fails to address is when a uterine rupture occurred. Dr. Pafos was first at plaintiff’s bedside and treating her in LIJ at 10:55pm on April 12, 2016. Plaintiff’s expert cites 6 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 this fact in his affidavit at paragraph 29. (Exhibit 1, plaintiff’s opposition, expert affidavit, paragraph 29, ECF Doc # 151). Plaintiff’s expert opines that at this point she was “fully dilated and close to delivering.” Id. In fact she was in labor for hours, and had been administered Pitocin for hours. 20. As Dr. Pafos started his treatment at 10:55pm according to plaintiff’s expert, it is incumbent on plaintiff to affirmatively state that the ruptured uterus occurred after his treatment began. If negligent treatment was indeed a cause of plaintiff’s ruptured uterus, at least with respect to Dr. Pafos it would have had to occur after his treatment. Plaintiff fails to address this. It is purely a guess as to when the ruptured uterus occurred. Plaintiff should not be permitted to guess that it occurred only after Dr. Pafos’ treatment started, far into the labor process. No party disputes that a ruptured uterus is a rare, but known complication of a TOLAC. As Dr. Lupin addressed in his expert affirmation: “As to the cause of the uterine rupture, it is my opinion that the mechanism of the rupture cannot be precisely identified. Dr. Pafos testified that he encountered it intraoperatively and that the bladder was also stuck to the anterior uterus. My review of the copious charting by the nurses and the physicians reveal no earlier indications of a uterine rupture. Nevertheless, a uterine rupture and injury to organs in the abdomen and pelvic area are known risks of a TOLAC.” (Exhibit A, Suppl. Affirmation in Support of Motion, Defendant Pafos, ECF Doc# 149, paragraph 10). 7 of 8 FILED: QUEENS COUNTY CLERK 08/24/2021 02/08/2022 04:58 05:10 PM INDEX NO. 717964/2018 NYSCEF DOC. NO. 164 200 RECEIVED NYSCEF: 08/24/2021 02/08/2022 WHEREFORE, the undersigned respectfully submits that the motion of defendant, Emmanuel M. Pafos MD, for summary judgment pursuant to CPLR 3212 should be granted, dismissing plaintiffs’ complaint. Respectfully Submitted, Anthony Xanthakis Anthony Xanthakis I, Anthony Xanthakis Esq., certify that this Reply Affirmation complies with the word count and page count limits as set forth in the Uniform Civil Rules for the Supreme Court Rule 202.8-b. The Reply Affirmation contains 2000 words. Anthony Xanthakis Anthony Xanthakis 8 of 8