Preview
FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018
NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022
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,
-against- AFFIRMATION IN
OPPOSITION TO
NORTHWELL HEALTH, INC, LONG ISLAND PLAINTIFFS
JEWISH MEDICAL CENTER, DEEPAK NANDA, MOTION FOR
MD, PC, DEEPAK NANDA M.D., EMMANUEL REARGUMENT
M. PAFOS, M.D.
Defendants.
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Bridget Dahle, an attorney admitted to practice law in the Courts of the State of New York
hereby affirms the following under penalty of perjury:
1. I am a Senior Associate with RUBIN PATERNITI GONZALEZ RIZZO
KAUFMAN LLP, attorneys for defendant DEEPAK NANDA M.D. (hereinafter “Dr. Nanda”) As
such, I am fully familiar with the facts and circumstances of this case based on my review of the
file maintained in this office and the NYSCEF document filing system.
2. This Affirmation is respectfully submitted in opposition to plaintiffs’ motion
seeking leave to reargue the Court’s Order dated December 6, 2021 granting Dr. Nanda’s motion
for summary judgment. (See, Order Motion 4, NYSCEF document #168).
3. The Court correctly determined on December 6, 2021 that Dr. Nanda’s motion for
summary judgment be granted and the case against this defendant dismissed. Plaintiff has failed
to show that the Court overlooked or misapprehended any facts or misapplied any law in granting
summary judgment to Dr. Nanda and dismissing plaintiffs complaint against Dr. Nanda.
4. Regarding the procedural background and factual history, the moving defendant
Dr. Nanda adopts the procedural history and factual statements set forth in the underlying motion
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as if more fully set forth herein. (See, Motion #4, Exhibits attached, Affirmation in Support and
Reply, NYSCEF documents # 87-103.) Dr. Nanda’s motion for summary judgment was filed on
June 14, 2021. (See, Notice of Motion, Affirmation in Support and Exhibits, NYSCEF documents
87-103). Plaintiffs’ Opposition was filed on August 4, 2021 (See, Opposition and Exhibits,
NYSCEF documents 150-158). Moving defendant Nanda PC replied on August 24, 2021 (See,
NYSCEF document 162). On December 6, 2021, this Court (O’Donoghue, J.) issued an Order
granting summary judgment to Dr. Deepak Nanda personally. (See, Order Motion 4, NYSCEF
document #168). On January 25, 2021 Plaintiff filed the instant Motion for Leave to Reargue.
(See, NYSCEF document # 184 ).
5. To successfully move to reargue, plaintiffs must identify “matters of fact or law
allegedly overlooked or misapprehended by the court.” N.Y. C.P.L.R. 2221(2). Plaintiffs have not
established that the court “overlooked or misapprehended” facts or law in the December 6, 2021
Decision and Order. Plaintiffs have cited no new evidence which was not available when the initial
Opposition was prepared and plaintiffs have not presented any facts or any arguments sufficient
to warrant reconsideration of any aspect of the Court’s decision. Furthermore, plaintiffs have not
demonstrated that this Court overlooked any fact or misapprehended any principle of law in
reaching its decision. Rather, plaintiffs are now asking the Court to revisit issues that were already
addressed. The court should therefore deny plaintiffs motion to reargue.
6. It is well settled that while a motion for reargument “afford[s] a party an
opportunity to establish that the court overlooked or misapprehended the relevant facts, or
misapplied any controlling principal of law”, it is not designed “to permit the unsuccessful party
to argue once again the very questions previously decided”. Pro Brokerage, Inc. v. Home Ins. Co.,
99 A.D.2d 971 (1st Dep’t 1984) (citation and quotation marks omitted). Mere “repetition of
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[assertions] originally made” requires denial of the motion. James v. Nestor, 120 A.D.2d 442 (1st
Dep’t 1986); see also Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dep’t 2014) (same). A motion
to reargue cannot serve as a vehicle for the unsuccessful party to argue once again the very
questions previously decided as plaintiffs attempt to do in the instant motion. Therefore, it is
respectfully submitted that plaintiffs motion to reargue should be denied for failing to establish the
requisite elements for granting reargument.
7. In Opposition to Dr. Nanda’s Motion for Summary Judgment, plaintiffs submitted
a defective and conclusory expert affirmation which the Court correctly found failed “to address
specific assertions made by defendants’ expert, is conclusory and is not based upon evidence in
the record.” (Court Order, NYSCEF doc. #168 p. 7). The Court properly recognized after a
detailed and comprehensive summary of the Record that the plaintiff asserted conclusory and
unsubstantiated allegations in the expert’s Affirmation which were insufficient to defeat Dr.
Nanda’s Motion for Summary Judgment. In the instant motion, plaintiffs repeat and restate the
original assertions considered by the Court in the underlying motion. Plaintiffs fail to point to any
facts that were overlooked or misapprehended and fail to point to any law that was misapplied by
this Court in granting summary judgment to Dr. Nanda.
8. Plaintiffs acknowledge that the Court held that their claim that “defendants failed
to assess Ms. Robinson for CPD by performing a Mueller-Hillis maneuver and improperly
administered Pitocin were not raised in the complaint, bills of particulars, or even mentioned in an
expert witness disclosure.” (Id.) Plaintiffs argument that their medical expert was merely
expounding on the allegations of in the bill of particulars is disingenuous at best and strains
credulity. The case cited by plaintiffs to support this argument, Mehtvin v. Ravi, 180 A.D. 3d 661
(2d Dept. 2020) is inapplicable as the plaintiffs allegations were more specific in that case.
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Plaintiffs claim that the general statement that the defendants failed to “sufficiently monitor during
her labor prior to ordering Pitocin” is a completely different theory then claiming defendants failed
to assess the plaintiff for cephalopelvic disproportion such that Pitocin would be contraindicated.
Clearly this general statement is not alleging the same claim and instead, is raising a new or
materially different theory of recovery. Plaintiff’s attempt to use a generalized phrase in the Bill
of Particulars to cover for their failure to specify claims in the Bill of Particulars was rejected by
the Court in the underlying motion and represents a desperate attempt to add a materially different
theory of recovery which the Court correctly held is improper in the underlying motion.
9. Furthermore, plaintiffs argument that the deposition testimony of Dr. Nanda and
Dr. Pafos conflicted as to the management of labor and delivery after 6:00 pm on April 12, 2016
also was considered and rejected as contrary to the facts in evidence by the Court in deciding the
underlying motion for summary judgment. As the Court so clearly stated in the underlying motion,
when considering this argument that has already been litigated and decided, the “evidence
presented establishes that Dr. Pafos took over as some time between 5:00 p.m. and 6:00 p.m. on
April 12, 2016” and that the plaintiffs expert opinions related to any departures alleged against Dr.
Nanda after Dr. Pafos took over the management of labor are “not supported by the evidence in
the record.” This Court finding was based on a comprehensive review of the records and all of the
deposition testimony including the testimony cited by plaintiffs in their motion to reargue, which
was clearly not overlooked or misapprehended by the Court.
10. Finally, with respect to the points listed in plaintiffs affirmation in support of the
instant motion, plaintiffs acknowledge that this Court held plaintiffs expert affirmation was lacking
in specificity and entirely conclusory with respect to the allegation that Dr. Nanda failed to
“sufficiently follow-up Mrs. Robinson’s condition during labor based upon the intervals between
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physician evaluations” and that with respect to this vague allegation, plaintiff fails to show how
this Court overlooked any facts or misapprehended applicable law. Plaintiffs claim that their
experts opinion regarding this care and treatment should have been considered specific because a
chart was used without explanation as to how that makes the expert’s opinion more specific as to
allegations of specific departures and thus, this argument fails to show how the Court overlooked
facts. Plaintiffs general argument in Point IV of the Affirmation in Support that the experts offer
conflicting expert opinions that are “diametrically” opposed was considered and rejected by this
Court in the underlying motion for summary judgment for Dr. Nanda and plaintiff does not offer
any new argument as to how the court overlooked facts or misapprehended the law with respect to
this issue.
11. It is clear that the Court carefully considered all of the issues and neither misapplied
nor misapprehended any of the facts or law. Plaintiffs entire motion consists of issues already
litigated and decided and therefore, must be denied in its entirety and even if the Court were to
hear reargument, it is respectfully submitted that the Court should adhere to its sound and reasoned
prior decision granting summary judgment to Dr. Nanda. The Court properly held that Dr. Nanda
established a prima facie entitlement to summary judgment based on the expert affirmation
evidence of Dr. Genevieve Sicuranza and that plaintiffs expert affirmation was insufficient to raise
a genuine issue of fact.
12. In sum, plaintiffs have failed to identify “matters of fact or law allegedly
overlooked or misapprehended by the court.” See N.Y. C.P.L.R. 2221 (McKinney). Plaintiffs
motion to reargue is an obvious attempt to restate previous arguments that have already been
litigation and a mere representation of assertions previously argued. It is therefore respectfully
submitted that the Court should deny plaintiffs motion for reargument.
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WHEREFORE it is respectfully requested that the Court deny plaintiff’s motion to
reargue the court’s December 6, 2021 Decision and Order granting defendant’s motion for
summary judgment and dismissing the complaint against Dr. Nanda and such other and further
relief the court determines is just and proper.
Dated: New York, New York
March 1, 2022
__________________________________
Bridget Dahle, Esq.
To all parties via NYSCEF:
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WORD CERTIFICATION
Pursuant to the Uniform Rules for the Supreme Court, Rule 202.8-b, this shall certify, by
the undersigned attorney filing the annexed Affirmation in Opposition, that the word count is 1645
words, and complies with the word count limit identified in Supreme Court Rule 202.8-b. In
determining the word count, the undersigned attorney relied upon the word processing program
(Microsoft Word) used to prepare the document.
Dated: New York, New York
March 1, 2022
__________________________________
Bridget Dahle, Esq.
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Preview
FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS ---------------------------------------------------------------------x THERESA ROBINSON and DEREK ROBINSON, Index No.: 717964/2018 Plaintiffs, -against- AFFIRMATION IN OPPOSITION TO NORTHWELL HEALTH, INC, LONG ISLAND PLAINTIFFS JEWISH MEDICAL CENTER, DEEPAK NANDA, MOTION FOR MD, PC, DEEPAK NANDA M.D., EMMANUEL REARGUMENT M. PAFOS, M.D. Defendants. ---------------------------------------------------------------------x Bridget Dahle, an attorney admitted to practice law in the Courts of the State of New York hereby affirms the following under penalty of perjury: 1. I am a Senior Associate with RUBIN PATERNITI GONZALEZ RIZZO KAUFMAN LLP, attorneys for defendant DEEPAK NANDA M.D. (hereinafter “Dr. Nanda”) As such, I am fully familiar with the facts and circumstances of this case based on my review of the file maintained in this office and the NYSCEF document filing system. 2. This Affirmation is respectfully submitted in opposition to plaintiffs’ motion seeking leave to reargue the Court’s Order dated December 6, 2021 granting Dr. Nanda’s motion for summary judgment. (See, Order Motion 4, NYSCEF document #168). 3. The Court correctly determined on December 6, 2021 that Dr. Nanda’s motion for summary judgment be granted and the case against this defendant dismissed. Plaintiff has failed to show that the Court overlooked or misapprehended any facts or misapplied any law in granting summary judgment to Dr. Nanda and dismissing plaintiffs complaint against Dr. Nanda. 4. Regarding the procedural background and factual history, the moving defendant Dr. Nanda adopts the procedural history and factual statements set forth in the underlying motion 1 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 as if more fully set forth herein. (See, Motion #4, Exhibits attached, Affirmation in Support and Reply, NYSCEF documents # 87-103.) Dr. Nanda’s motion for summary judgment was filed on June 14, 2021. (See, Notice of Motion, Affirmation in Support and Exhibits, NYSCEF documents 87-103). Plaintiffs’ Opposition was filed on August 4, 2021 (See, Opposition and Exhibits, NYSCEF documents 150-158). Moving defendant Nanda PC replied on August 24, 2021 (See, NYSCEF document 162). On December 6, 2021, this Court (O’Donoghue, J.) issued an Order granting summary judgment to Dr. Deepak Nanda personally. (See, Order Motion 4, NYSCEF document #168). On January 25, 2021 Plaintiff filed the instant Motion for Leave to Reargue. (See, NYSCEF document # 184 ). 5. To successfully move to reargue, plaintiffs must identify “matters of fact or law allegedly overlooked or misapprehended by the court.” N.Y. C.P.L.R. 2221(2). Plaintiffs have not established that the court “overlooked or misapprehended” facts or law in the December 6, 2021 Decision and Order. Plaintiffs have cited no new evidence which was not available when the initial Opposition was prepared and plaintiffs have not presented any facts or any arguments sufficient to warrant reconsideration of any aspect of the Court’s decision. Furthermore, plaintiffs have not demonstrated that this Court overlooked any fact or misapprehended any principle of law in reaching its decision. Rather, plaintiffs are now asking the Court to revisit issues that were already addressed. The court should therefore deny plaintiffs motion to reargue. 6. It is well settled that while a motion for reargument “afford[s] a party an opportunity to establish that the court overlooked or misapprehended the relevant facts, or misapplied any controlling principal of law”, it is not designed “to permit the unsuccessful party to argue once again the very questions previously decided”. Pro Brokerage, Inc. v. Home Ins. Co., 99 A.D.2d 971 (1st Dep’t 1984) (citation and quotation marks omitted). Mere “repetition of 2 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 [assertions] originally made” requires denial of the motion. James v. Nestor, 120 A.D.2d 442 (1st Dep’t 1986); see also Ahmed v. Pannone, 116 A.D.3d 802, 805 (2d Dep’t 2014) (same). A motion to reargue cannot serve as a vehicle for the unsuccessful party to argue once again the very questions previously decided as plaintiffs attempt to do in the instant motion. Therefore, it is respectfully submitted that plaintiffs motion to reargue should be denied for failing to establish the requisite elements for granting reargument. 7. In Opposition to Dr. Nanda’s Motion for Summary Judgment, plaintiffs submitted a defective and conclusory expert affirmation which the Court correctly found failed “to address specific assertions made by defendants’ expert, is conclusory and is not based upon evidence in the record.” (Court Order, NYSCEF doc. #168 p. 7). The Court properly recognized after a detailed and comprehensive summary of the Record that the plaintiff asserted conclusory and unsubstantiated allegations in the expert’s Affirmation which were insufficient to defeat Dr. Nanda’s Motion for Summary Judgment. In the instant motion, plaintiffs repeat and restate the original assertions considered by the Court in the underlying motion. Plaintiffs fail to point to any facts that were overlooked or misapprehended and fail to point to any law that was misapplied by this Court in granting summary judgment to Dr. Nanda. 8. Plaintiffs acknowledge that the Court held that their claim that “defendants failed to assess Ms. Robinson for CPD by performing a Mueller-Hillis maneuver and improperly administered Pitocin were not raised in the complaint, bills of particulars, or even mentioned in an expert witness disclosure.” (Id.) Plaintiffs argument that their medical expert was merely expounding on the allegations of in the bill of particulars is disingenuous at best and strains credulity. The case cited by plaintiffs to support this argument, Mehtvin v. Ravi, 180 A.D. 3d 661 (2d Dept. 2020) is inapplicable as the plaintiffs allegations were more specific in that case. 3 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 Plaintiffs claim that the general statement that the defendants failed to “sufficiently monitor during her labor prior to ordering Pitocin” is a completely different theory then claiming defendants failed to assess the plaintiff for cephalopelvic disproportion such that Pitocin would be contraindicated. Clearly this general statement is not alleging the same claim and instead, is raising a new or materially different theory of recovery. Plaintiff’s attempt to use a generalized phrase in the Bill of Particulars to cover for their failure to specify claims in the Bill of Particulars was rejected by the Court in the underlying motion and represents a desperate attempt to add a materially different theory of recovery which the Court correctly held is improper in the underlying motion. 9. Furthermore, plaintiffs argument that the deposition testimony of Dr. Nanda and Dr. Pafos conflicted as to the management of labor and delivery after 6:00 pm on April 12, 2016 also was considered and rejected as contrary to the facts in evidence by the Court in deciding the underlying motion for summary judgment. As the Court so clearly stated in the underlying motion, when considering this argument that has already been litigated and decided, the “evidence presented establishes that Dr. Pafos took over as some time between 5:00 p.m. and 6:00 p.m. on April 12, 2016” and that the plaintiffs expert opinions related to any departures alleged against Dr. Nanda after Dr. Pafos took over the management of labor are “not supported by the evidence in the record.” This Court finding was based on a comprehensive review of the records and all of the deposition testimony including the testimony cited by plaintiffs in their motion to reargue, which was clearly not overlooked or misapprehended by the Court. 10. Finally, with respect to the points listed in plaintiffs affirmation in support of the instant motion, plaintiffs acknowledge that this Court held plaintiffs expert affirmation was lacking in specificity and entirely conclusory with respect to the allegation that Dr. Nanda failed to “sufficiently follow-up Mrs. Robinson’s condition during labor based upon the intervals between 4 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 physician evaluations” and that with respect to this vague allegation, plaintiff fails to show how this Court overlooked any facts or misapprehended applicable law. Plaintiffs claim that their experts opinion regarding this care and treatment should have been considered specific because a chart was used without explanation as to how that makes the expert’s opinion more specific as to allegations of specific departures and thus, this argument fails to show how the Court overlooked facts. Plaintiffs general argument in Point IV of the Affirmation in Support that the experts offer conflicting expert opinions that are “diametrically” opposed was considered and rejected by this Court in the underlying motion for summary judgment for Dr. Nanda and plaintiff does not offer any new argument as to how the court overlooked facts or misapprehended the law with respect to this issue. 11. It is clear that the Court carefully considered all of the issues and neither misapplied nor misapprehended any of the facts or law. Plaintiffs entire motion consists of issues already litigated and decided and therefore, must be denied in its entirety and even if the Court were to hear reargument, it is respectfully submitted that the Court should adhere to its sound and reasoned prior decision granting summary judgment to Dr. Nanda. The Court properly held that Dr. Nanda established a prima facie entitlement to summary judgment based on the expert affirmation evidence of Dr. Genevieve Sicuranza and that plaintiffs expert affirmation was insufficient to raise a genuine issue of fact. 12. In sum, plaintiffs have failed to identify “matters of fact or law allegedly overlooked or misapprehended by the court.” See N.Y. C.P.L.R. 2221 (McKinney). Plaintiffs motion to reargue is an obvious attempt to restate previous arguments that have already been litigation and a mere representation of assertions previously argued. It is therefore respectfully submitted that the Court should deny plaintiffs motion for reargument. 5 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 WHEREFORE it is respectfully requested that the Court deny plaintiff’s motion to reargue the court’s December 6, 2021 Decision and Order granting defendant’s motion for summary judgment and dismissing the complaint against Dr. Nanda and such other and further relief the court determines is just and proper. Dated: New York, New York March 1, 2022 __________________________________ Bridget Dahle, Esq. To all parties via NYSCEF: 6 of 7 FILED: QUEENS COUNTY CLERK 03/01/2022 11:42 AM INDEX NO. 717964/2018 NYSCEF DOC. NO. 202 RECEIVED NYSCEF: 03/01/2022 WORD CERTIFICATION Pursuant to the Uniform Rules for the Supreme Court, Rule 202.8-b, this shall certify, by the undersigned attorney filing the annexed Affirmation in Opposition, that the word count is 1645 words, and complies with the word count limit identified in Supreme Court Rule 202.8-b. In determining the word count, the undersigned attorney relied upon the word processing program (Microsoft Word) used to prepare the document. Dated: New York, New York March 1, 2022 __________________________________ Bridget Dahle, Esq. 7 of 7