Preview
FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015
NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
x
SHELLYANN HOFFMAN AND OLUJIMI
JOLAOSHO,
ATTORNEY AFFIRMATION IN
Plaintiffs, SUPPORT OF MOTION TO
REARGUE THIS COURT’S APRIL
-against- 30, 2021 ORDER
DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., Index No. 805302/2015
DMITRY YOUSHKO, M.D., MEGAN
KWASNIAK, M.D., LARISSA STATHAKES, ORAL ARGUMENT REQUESTED
P.A., BROOKLYN HOSPITAL and NEW YORK
PREBYTERIAN HOSPITAL,
Defendants.
x
JESSICA L. PREIS, ESQ., an attorney duly admitted to practice law in the Courts of the
State of New York, hereby affirms the following under the penalties of perjury:
1. I am an associate at the law firm of AARONSON RAPPAPORT FEINSTEIN &
DEUTSCH, LLP, attorneys for the defendants, DEBRA TAUBEL, M.D., TIRSIT ASFAW,
M.D. and THE NEW YORK AND PRESBYTERIAN HOSPITAL s/h/a “NEW YORK
PRESBYTERIAN HOSPITAL” (also referred to hereinafter as “NYPH”). As such, I am fully
familiar with the facts and circumstances of the within action based upon my review of the files
maintained by this office.
2. This Affirmation is submitted in support of the instant Motion for an order:
a. Pursuant to CPLR §2221 granting defendants’ motion for leave to reargue this
Court’s decision and order dated April 30, 2021 and entered May 3, 2021; and
b. Upon reargument, granting partial summary judgment in favor of Debra
Taubel, M.D., Tirsit Asfaw, M.D. and NYPH; and
c. Granting such other and further relief as this Court deems just, proper, and
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equitable under the circumstances.
3. The April 30, 2021, decision and order was served with written notice of entry on
May 3, 2021. This motion is timely made on Wednesday, June 2, 2021.
4. This is a medical malpractice action involving allegations of negligence regarding
the care provided to Plaintiff, SHELLYANN HOFFMAN, by Defendants, during her admission
to THE NEW YORK AND PRESBYTERIAN HOSPITAL, in September of 2014. More
specifically, this case arises from the performance of a hysterectomy by defendant, DEBRA
TAUBEL, M.D., on September 9, 2014, which was complicated by an injury to Plaintiff’s right
ureter.
5. In this motion, defendants do not contest all of the Court’s April 30, 2021
decision and order, although the decision not to do so is not a waiver of defendants’ rights to
challenge all portions therein wherein defendants’ motion was denied on appeal or at trial.
Rather, defendants’ motion is focused on the Court’s denial of summary judgment on the
argument posed that plaintiff’s subsequent and current urinary issues, along with the loss of
consortium claim, are not causally related to the ureteral injury in question. From a review of the
court’s decision and order, it appears that the Court overlooked that argument, which was set
forth in both the initial moving papers and the reply papers. This is based upon the fact that
within the decision there is no comment on defendants’ argument that the opinions of the
plaintiffs’ experts concerning the alleged urinary issues and loss of consortium claims are
entirely conclusory. The court’s decision also makes no mention of the urodynamic testing
results – annexed as an exhibit to the plaintiff’s opposition papers – which defendants argued
definitively supports the contention that the plaintiff’s claimed urinary complaints are due to a
separate bladder problem unrelated to the ureter injury. Accordingly, defendants respectfully
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request that this Court grant defendants’ summary judgment motion as it applies to these alleged
damages.
6. Ultimately, plaintiffs’ experts fail to refute defendant’s expert, Dr. Toby Chai’s
opinion that the plaintiff’s current urinary issues are not causally related to the ureteral injury in
question, and that plaintiff’s own exhibit “R” (i.e., the records of the urodynamic testing done in
April of 2016) conclusively supports Dr. Chai’s opinion in this regard.
7. The following exhibits support this motion:
Exhibit A: Decision and Order Dated April 30, 2021 and Entered May 3, 2021;
Exhibit B: Defendants’ Summary Judgment Motion Papers with Exhibits;
Exhibit C: Plaintiffs’ Opposition Papers with Exhibits; and
Exhibit D: Defendants’ Reply Papers with Exhibits.
ARGUMENT
8. “Motions for reargument are addressed to the sound discretion of the court which
decided the prior order and may be granted upon a showing that the court overlooked or
misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier
decision.” Grimm v. Bailey, 105 A.D.3d 703, 704 (2d Dep’t 2013); see CPLR 2221(d)(2).
9. In this case, it is respectfully submitted, this Court overlooked or misapprehended the
facts and/or law concerning defendants’ contention that plaintiff’s claimed damages, consisting of
subsequent and current urinary issues along with the loss of consortium claim, are not causally
related to the ureteral injury in question. In contrast to the Defendants’ detailed expert affidavit,
plaintiffs attempted to refute Defendants’ prima facie by making mere conclusory statements with
no factual support, and mischaracterizations of the record.
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10. In denying defendants’ summary judgment motions (other than the informed consent
claim) the Court did not address plaintiffs’ experts’ conclusory statements as to the relationship
between the ureteral injury at issue and plaintiff’s unrelated urinary issues and loss of consortium
claim. In fact, these injuries were not addressed at all within the decision and order rendered by the
Court. The Court was silent as to the arguments made in the underlying summary judgment motion
and ruled as follows:
The plaintiffs’ experts thus are competent to render an opinion as to the standard of
care applicable to the preservation of urinary tract anatomical structures such as the
ureter in the course of an obstetrical procedure such as a hysterectomy. They are also
competent to testify which of the defendants’ acts constituted a departure from that
standard, and whether such a departure cause or contributed Hoffman’s injuries.
11. To reiterate arguments made in defendants’ underlying affirmation in support of
summary judgment and Reply affirmation, which are not referenced in the Court’s decision,
plaintiffs’ experts fail to support any of his or her opinions with admissible evidence, and as such
the plaintiff’s opposition has failed to raise a triable issue of fact with regard to the claimed damages
that are the subject of this motion. Appellate case law is replete with holdings that the opinion of an
opposing medical expert that is contradicted or unsupported by the record, misstates the facts, or
fails to address the material elements and opinions proffered by an expert on behalf of a moving
defendant, must be rejected as conclusory and legally insufficient (see, e.g., Klein v Argoff, 101
AD3d 1090 [2d Dept 2012] [affirming summary judgment for defendants where plaintiff’s expert
opined that a granuloma had formed at the tip of the plaintiff’s intraspinal catheter, and the failure to
timely remove the device caused plaintiff’s injury, but this theory lacked any support in the clinical
record and none of the radiology studies or myelograms revealed any tip granuloma or
inflammatory mass]; Swanson v Raju, 95 AD3d 1105, 1107 [2d Dept 2012] [holding the plaintiff’s
expert’s opinions on causation were conclusory where the expert failed to account for a subsequent
MRI of the injured finger that showed no ruptured tendon]; Oestreich v Present, 50 AD3d 522 [1st
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Dept 2008] [affirming summary judgment for defendants where plaintiff’s anesthesia expert opined
that defendants improperly used an 8 mm endotracheal tube to intubate, and used a nasogastric tube,
but the record demonstrated that a 6 mm tube was used and there was no indication a nasogastric
tube was used]). Further, a plaintiff's expert statement that fails to respond to relevant issues raised
by the defendant's expert does not suffice to establish the existence of a material issue of fact (see
Ahmed v Pannone, 116 AD3d 802 [2d Dept 2014]). Ultimately, defendants made out a prima facie
showing of entitlement to summary judgment, but plaintiff here failed to adequately rebut that
showing and respond to the opinions proffered by Dr. Chai.
12. As argued by defendants, plaintiffs’ opposition ignores dispositive facts and
controlling legal principles in an effort to distract this Court into doing the same. The mere fact that
plaintiffs submitted an expert affirmation and affidavit, is not in and of itself sufficient to raise a
question of fact. A triable issue of fact must be shown to exist that is “real, not feigned,” since “a
sham or a frivolous issue will not preclude summary relief” (Fender v Prescott, 101 AD2d 418, 425
(1st Dept. 1984), aff’d, 64 NY2d 1077 [1985]; see also Towners Org. v Glockhurst Corp., 160
AD2d 597 (1st Dept. 1990). In the present case, plaintiffs have failed to meet their burden as they
have not demonstrated any material issues of fact, which warrant the trial of this action.
13. The Court’s decision makes no mention of defendants’ arguments clearly
demonstrating that the conclusory nature of plaintiffs’ purported experts’ affidavit and
affirmation can be seen in a number of instances throughout, but most egregious are those in
connection to the experts’ conclusions that Ms. Hoffman’s current urinary issues are related to
the ureteral injury at issue. Defendants’ expert Dr. Chai opined the following which went
unaddressed by the Court:
Furthermore, it is still my opinion that any current urinary issues relayed by
plaintiff, or medical treatment received for urinary related matters, are unrelated
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to a ureteral injury, rather they are common signs of stress incontinence that can
be secondary to recent pregnancy. Current injuries alleged have no relation to
plaintiff’s repair surgery that took place in November 2014. Unable to
substantively or meaningfully counter my opinions made related to damages
issues, plaintiffs’ experts address these issues by merely making conclusory
statements without factual support or coherent medical opinions.
(Exhibit “Q” at ¶ 19).
14. To be precise, plaintiffs’ experts stated, in a conclusory manner:
I disagree with the defense expert that any current urinary issues that Shellyann
Hoffman suffers from is secondary to her depression and use of prescription
medication. It is my opinion to a reasonable degree of medical certainty that
Shellyann Hoffman suffered severe and permanent injuries as a consequence of
defendants’ malpractice and that her injuries are causally related to the negligent
transection of the ureter during the September 9, 2014 surgery and the negligent
failure to timely diagnose and repair the injury thereafter.
(See Plaintiff’s Expert Affidavit at ¶ 52).
15. The Court’s decision and order does not address the defendant’s argument that neither
expert offers any medical or evidentiary support whatsoever for this conclusion. Both experts
simply state that they “disagree with the defense expert” that any current urinary issues are
secondary to her depression and the use of prescription medication, but they do not provide any
medically supported opinion as to why they disagree. More importantly, the Court apparently
overlooked plaintiffs’ experts’ failure to provide any basis for their conclusions, such as citations
to pages and specific findings in the medical records or references to peer-reviewed medical
literature. (Plaintiff’s Opposition, Exhibit “Q” at ¶ 20).
16. Notably, the Court’s decision does not acknowledge that the clinical record and
medical testing supports Dr. Chai’s opinion that plaintiff’s urinary complaints are unrelated to
the ureter injury or the repair of the ureter injury. Dr. Chai opined in a comprehensive manner
the following:
For example, a CT scan performed on January 21, 2016 showed no
hydronephrosis and a radionuclide scan demonstrated plaintiff’s kidneys were
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normal. (NYPH Outpatient Chart at p. 27-34). This further shows that the ureter
was repaired and was functioning normally with no apparent dysfunction. Hence,
the bladder issue is an independent problem, correlated with plaintiff’s baseline
stated, exacerbated by stress, anxiety and depression, but unrelated to the ureteral
injury or repair surgery.
(Exhibit “Q” at ¶ 21).
17. Dr. Chai pointed out that the plaintiffs’ experts also failed to identify the mechanisms
of how the urinary complaints are causally related to the alleged malpractice, because they were
unable to do so. The following was conclusively argued:
It is Plaintiffs’ experts opinion to a reasonable degree of medical certainty that
defendants Debra Taubel, M.D., Tirsit Asfaw, M.D. and New York Presbyterian
Hospital, but its employees and staff, departed from good and accepted practice
and that such departures were the proximate and competent cause of Shellyann
Hoffman’s injuries and sequela.
(Plaintiff’s Exhibit “Q” at ¶ 21).
18. Moreover, the Court seemingly overlooked the fact that urodynamic testing
referenced by both of plaintiffs’ experts and (ironically) attached as Exhibit “R” to plaintiffs’
Opposition papers confirms Dr. Chai’s contention that plaintiff’s urinary issues are caused by a
separate bladder issue that is unrelated to the ureteral injury and/or re-implantation. Following
completion of the cystoscopy and urodynamic studies, the post-operative diagnosis within the
Operative Report was specifically listed as “overactive bladder.” (See Plaintiffs’ Opposition,
Exhibit “R”, p. 2). According to the “Indication for Procedure” section of the Operative Report,
it was explicitly documented that, “initially perioperatively the patient had been doing well,
however, recently she has developed an abdominal collection, which abuts the bladder. The
patient has subsequently started having increased frequency, urgency and intermittent high
residuals.”
19. Within the Court’s decision and order there was no commentary on defendants’
argument that the medical records document that plaintiff was initially doing well following the
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re-implantation procedure to repair the ureter, but subsequently developed an independent
bladder problem. Dr. Chai highlighted the following:
Based on the description of the urodynamic testing, plaintiff’s bladder “was noted
to be very active with strong detrusor contractions.” Id. at 3. This is another name
for detrusor overactivity, a common bladder problem that is seen independently of
ureteral surgeries which can arise from causes related to the nervous system. This
further proves that plaintiff’s urinary issues are consistent with a separate bladder
issue and not a ureteral issue.
(Exhibit “Q” at ¶ 22).
20. Finally, the Court’s decision did not address Dr. Chai’s opinion that plaintiff-
husband’s loss of consortium claim is without merit, because ureteral injuries are not related to
one’s ability to have sex. In relation to this claim, plaintiffs’ experts once again made conclusory
statements without factual support in a feeble attempt to avoid dismissal of this claim. Plaintiffs’
experts conceded that Ms. Hoffman and her husband are able to have sex, but “the frequency of
their engaging in sexual relations has significantly decreased.” Plaintiffs’ experts conclude the
following without any basis:
I disagree with the defense expert’s opinion that Olujimi Jolaosho’s loss of
consortium claim should be dismissed under the flawed premise that ureteral
injuries are not related to one’s ability to have sex. Clearly Shellyann Hoffman
has suffered serious and permanent injuries that have greatly impacted her life as
is evidenced by her medical records and her deposition testimony as well as the
deposition of Mr. Jolaosho. Shellyann Hoffman testified her sex life with her
husband has been meaningfully impacted due to injuries she suffers from due to
the malpractice and that as a consequence the frequency of their engaging in
sexual relations has significantly decreased. It is my opinion to a reasonable
degree of medical certainty Shellyann Hoffman’s injuries are of a serious nature
impacting her physically and mentally and that such injuries are a substantial
factor in causing the loss of consortium alleged in Plaintiffs’ Pleadings.
(See Plaintiff’s Expert Affidavit at ¶ 53).
21. However, plaintiffs’ experts have not provided any factual, biological or scientific
support of their conclusory opinion that ureteral injuries can somehow lead to “decreased”
frequency sex. The plaintiff’s experts failed to identify any medical literature which explains the
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mechanism that causes a “decrease in frequency” of sex following either transient or permanent
ureteral injuries. Dr. Chai’s explanation that ureteral injuries are not related to one’s ability to
have sex was not been refuted in any meaningful way, because plaintiffs’ experts are unable to
argue otherwise. (Exhibit “Q” at ¶ 23).
WHEREFORE, it is respectfully requested that this court grant defendants’ Motion for
reargument, and, upon reargument, dismiss plaintiff’s claims related to subsequent urinary damages
and the loss of consortium cause of action.
Jessica Preos_____________________
Jessica L. Preis, Esq.
Dated: New York, New York
June 2, 2021
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Preview
FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK x SHELLYANN HOFFMAN AND OLUJIMI JOLAOSHO, ATTORNEY AFFIRMATION IN Plaintiffs, SUPPORT OF MOTION TO REARGUE THIS COURT’S APRIL -against- 30, 2021 ORDER DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D., Index No. 805302/2015 DMITRY YOUSHKO, M.D., MEGAN KWASNIAK, M.D., LARISSA STATHAKES, ORAL ARGUMENT REQUESTED P.A., BROOKLYN HOSPITAL and NEW YORK PREBYTERIAN HOSPITAL, Defendants. x JESSICA L. PREIS, ESQ., an attorney duly admitted to practice law in the Courts of the State of New York, hereby affirms the following under the penalties of perjury: 1. I am an associate at the law firm of AARONSON RAPPAPORT FEINSTEIN & DEUTSCH, LLP, attorneys for the defendants, DEBRA TAUBEL, M.D., TIRSIT ASFAW, M.D. and THE NEW YORK AND PRESBYTERIAN HOSPITAL s/h/a “NEW YORK PRESBYTERIAN HOSPITAL” (also referred to hereinafter as “NYPH”). As such, I am fully familiar with the facts and circumstances of the within action based upon my review of the files maintained by this office. 2. This Affirmation is submitted in support of the instant Motion for an order: a. Pursuant to CPLR §2221 granting defendants’ motion for leave to reargue this Court’s decision and order dated April 30, 2021 and entered May 3, 2021; and b. Upon reargument, granting partial summary judgment in favor of Debra Taubel, M.D., Tirsit Asfaw, M.D. and NYPH; and c. Granting such other and further relief as this Court deems just, proper, and 1 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 equitable under the circumstances. 3. The April 30, 2021, decision and order was served with written notice of entry on May 3, 2021. This motion is timely made on Wednesday, June 2, 2021. 4. This is a medical malpractice action involving allegations of negligence regarding the care provided to Plaintiff, SHELLYANN HOFFMAN, by Defendants, during her admission to THE NEW YORK AND PRESBYTERIAN HOSPITAL, in September of 2014. More specifically, this case arises from the performance of a hysterectomy by defendant, DEBRA TAUBEL, M.D., on September 9, 2014, which was complicated by an injury to Plaintiff’s right ureter. 5. In this motion, defendants do not contest all of the Court’s April 30, 2021 decision and order, although the decision not to do so is not a waiver of defendants’ rights to challenge all portions therein wherein defendants’ motion was denied on appeal or at trial. Rather, defendants’ motion is focused on the Court’s denial of summary judgment on the argument posed that plaintiff’s subsequent and current urinary issues, along with the loss of consortium claim, are not causally related to the ureteral injury in question. From a review of the court’s decision and order, it appears that the Court overlooked that argument, which was set forth in both the initial moving papers and the reply papers. This is based upon the fact that within the decision there is no comment on defendants’ argument that the opinions of the plaintiffs’ experts concerning the alleged urinary issues and loss of consortium claims are entirely conclusory. The court’s decision also makes no mention of the urodynamic testing results – annexed as an exhibit to the plaintiff’s opposition papers – which defendants argued definitively supports the contention that the plaintiff’s claimed urinary complaints are due to a separate bladder problem unrelated to the ureter injury. Accordingly, defendants respectfully -2- 2 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 request that this Court grant defendants’ summary judgment motion as it applies to these alleged damages. 6. Ultimately, plaintiffs’ experts fail to refute defendant’s expert, Dr. Toby Chai’s opinion that the plaintiff’s current urinary issues are not causally related to the ureteral injury in question, and that plaintiff’s own exhibit “R” (i.e., the records of the urodynamic testing done in April of 2016) conclusively supports Dr. Chai’s opinion in this regard. 7. The following exhibits support this motion: Exhibit A: Decision and Order Dated April 30, 2021 and Entered May 3, 2021; Exhibit B: Defendants’ Summary Judgment Motion Papers with Exhibits; Exhibit C: Plaintiffs’ Opposition Papers with Exhibits; and Exhibit D: Defendants’ Reply Papers with Exhibits. ARGUMENT 8. “Motions for reargument are addressed to the sound discretion of the court which decided the prior order and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision.” Grimm v. Bailey, 105 A.D.3d 703, 704 (2d Dep’t 2013); see CPLR 2221(d)(2). 9. In this case, it is respectfully submitted, this Court overlooked or misapprehended the facts and/or law concerning defendants’ contention that plaintiff’s claimed damages, consisting of subsequent and current urinary issues along with the loss of consortium claim, are not causally related to the ureteral injury in question. In contrast to the Defendants’ detailed expert affidavit, plaintiffs attempted to refute Defendants’ prima facie by making mere conclusory statements with no factual support, and mischaracterizations of the record. -3- 3 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 10. In denying defendants’ summary judgment motions (other than the informed consent claim) the Court did not address plaintiffs’ experts’ conclusory statements as to the relationship between the ureteral injury at issue and plaintiff’s unrelated urinary issues and loss of consortium claim. In fact, these injuries were not addressed at all within the decision and order rendered by the Court. The Court was silent as to the arguments made in the underlying summary judgment motion and ruled as follows: The plaintiffs’ experts thus are competent to render an opinion as to the standard of care applicable to the preservation of urinary tract anatomical structures such as the ureter in the course of an obstetrical procedure such as a hysterectomy. They are also competent to testify which of the defendants’ acts constituted a departure from that standard, and whether such a departure cause or contributed Hoffman’s injuries. 11. To reiterate arguments made in defendants’ underlying affirmation in support of summary judgment and Reply affirmation, which are not referenced in the Court’s decision, plaintiffs’ experts fail to support any of his or her opinions with admissible evidence, and as such the plaintiff’s opposition has failed to raise a triable issue of fact with regard to the claimed damages that are the subject of this motion. Appellate case law is replete with holdings that the opinion of an opposing medical expert that is contradicted or unsupported by the record, misstates the facts, or fails to address the material elements and opinions proffered by an expert on behalf of a moving defendant, must be rejected as conclusory and legally insufficient (see, e.g., Klein v Argoff, 101 AD3d 1090 [2d Dept 2012] [affirming summary judgment for defendants where plaintiff’s expert opined that a granuloma had formed at the tip of the plaintiff’s intraspinal catheter, and the failure to timely remove the device caused plaintiff’s injury, but this theory lacked any support in the clinical record and none of the radiology studies or myelograms revealed any tip granuloma or inflammatory mass]; Swanson v Raju, 95 AD3d 1105, 1107 [2d Dept 2012] [holding the plaintiff’s expert’s opinions on causation were conclusory where the expert failed to account for a subsequent MRI of the injured finger that showed no ruptured tendon]; Oestreich v Present, 50 AD3d 522 [1st -4- 4 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 Dept 2008] [affirming summary judgment for defendants where plaintiff’s anesthesia expert opined that defendants improperly used an 8 mm endotracheal tube to intubate, and used a nasogastric tube, but the record demonstrated that a 6 mm tube was used and there was no indication a nasogastric tube was used]). Further, a plaintiff's expert statement that fails to respond to relevant issues raised by the defendant's expert does not suffice to establish the existence of a material issue of fact (see Ahmed v Pannone, 116 AD3d 802 [2d Dept 2014]). Ultimately, defendants made out a prima facie showing of entitlement to summary judgment, but plaintiff here failed to adequately rebut that showing and respond to the opinions proffered by Dr. Chai. 12. As argued by defendants, plaintiffs’ opposition ignores dispositive facts and controlling legal principles in an effort to distract this Court into doing the same. The mere fact that plaintiffs submitted an expert affirmation and affidavit, is not in and of itself sufficient to raise a question of fact. A triable issue of fact must be shown to exist that is “real, not feigned,” since “a sham or a frivolous issue will not preclude summary relief” (Fender v Prescott, 101 AD2d 418, 425 (1st Dept. 1984), aff’d, 64 NY2d 1077 [1985]; see also Towners Org. v Glockhurst Corp., 160 AD2d 597 (1st Dept. 1990). In the present case, plaintiffs have failed to meet their burden as they have not demonstrated any material issues of fact, which warrant the trial of this action. 13. The Court’s decision makes no mention of defendants’ arguments clearly demonstrating that the conclusory nature of plaintiffs’ purported experts’ affidavit and affirmation can be seen in a number of instances throughout, but most egregious are those in connection to the experts’ conclusions that Ms. Hoffman’s current urinary issues are related to the ureteral injury at issue. Defendants’ expert Dr. Chai opined the following which went unaddressed by the Court: Furthermore, it is still my opinion that any current urinary issues relayed by plaintiff, or medical treatment received for urinary related matters, are unrelated -5- 5 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 to a ureteral injury, rather they are common signs of stress incontinence that can be secondary to recent pregnancy. Current injuries alleged have no relation to plaintiff’s repair surgery that took place in November 2014. Unable to substantively or meaningfully counter my opinions made related to damages issues, plaintiffs’ experts address these issues by merely making conclusory statements without factual support or coherent medical opinions. (Exhibit “Q” at ¶ 19). 14. To be precise, plaintiffs’ experts stated, in a conclusory manner: I disagree with the defense expert that any current urinary issues that Shellyann Hoffman suffers from is secondary to her depression and use of prescription medication. It is my opinion to a reasonable degree of medical certainty that Shellyann Hoffman suffered severe and permanent injuries as a consequence of defendants’ malpractice and that her injuries are causally related to the negligent transection of the ureter during the September 9, 2014 surgery and the negligent failure to timely diagnose and repair the injury thereafter. (See Plaintiff’s Expert Affidavit at ¶ 52). 15. The Court’s decision and order does not address the defendant’s argument that neither expert offers any medical or evidentiary support whatsoever for this conclusion. Both experts simply state that they “disagree with the defense expert” that any current urinary issues are secondary to her depression and the use of prescription medication, but they do not provide any medically supported opinion as to why they disagree. More importantly, the Court apparently overlooked plaintiffs’ experts’ failure to provide any basis for their conclusions, such as citations to pages and specific findings in the medical records or references to peer-reviewed medical literature. (Plaintiff’s Opposition, Exhibit “Q” at ¶ 20). 16. Notably, the Court’s decision does not acknowledge that the clinical record and medical testing supports Dr. Chai’s opinion that plaintiff’s urinary complaints are unrelated to the ureter injury or the repair of the ureter injury. Dr. Chai opined in a comprehensive manner the following: For example, a CT scan performed on January 21, 2016 showed no hydronephrosis and a radionuclide scan demonstrated plaintiff’s kidneys were -6- 6 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 normal. (NYPH Outpatient Chart at p. 27-34). This further shows that the ureter was repaired and was functioning normally with no apparent dysfunction. Hence, the bladder issue is an independent problem, correlated with plaintiff’s baseline stated, exacerbated by stress, anxiety and depression, but unrelated to the ureteral injury or repair surgery. (Exhibit “Q” at ¶ 21). 17. Dr. Chai pointed out that the plaintiffs’ experts also failed to identify the mechanisms of how the urinary complaints are causally related to the alleged malpractice, because they were unable to do so. The following was conclusively argued: It is Plaintiffs’ experts opinion to a reasonable degree of medical certainty that defendants Debra Taubel, M.D., Tirsit Asfaw, M.D. and New York Presbyterian Hospital, but its employees and staff, departed from good and accepted practice and that such departures were the proximate and competent cause of Shellyann Hoffman’s injuries and sequela. (Plaintiff’s Exhibit “Q” at ¶ 21). 18. Moreover, the Court seemingly overlooked the fact that urodynamic testing referenced by both of plaintiffs’ experts and (ironically) attached as Exhibit “R” to plaintiffs’ Opposition papers confirms Dr. Chai’s contention that plaintiff’s urinary issues are caused by a separate bladder issue that is unrelated to the ureteral injury and/or re-implantation. Following completion of the cystoscopy and urodynamic studies, the post-operative diagnosis within the Operative Report was specifically listed as “overactive bladder.” (See Plaintiffs’ Opposition, Exhibit “R”, p. 2). According to the “Indication for Procedure” section of the Operative Report, it was explicitly documented that, “initially perioperatively the patient had been doing well, however, recently she has developed an abdominal collection, which abuts the bladder. The patient has subsequently started having increased frequency, urgency and intermittent high residuals.” 19. Within the Court’s decision and order there was no commentary on defendants’ argument that the medical records document that plaintiff was initially doing well following the -7- 7 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 re-implantation procedure to repair the ureter, but subsequently developed an independent bladder problem. Dr. Chai highlighted the following: Based on the description of the urodynamic testing, plaintiff’s bladder “was noted to be very active with strong detrusor contractions.” Id. at 3. This is another name for detrusor overactivity, a common bladder problem that is seen independently of ureteral surgeries which can arise from causes related to the nervous system. This further proves that plaintiff’s urinary issues are consistent with a separate bladder issue and not a ureteral issue. (Exhibit “Q” at ¶ 22). 20. Finally, the Court’s decision did not address Dr. Chai’s opinion that plaintiff- husband’s loss of consortium claim is without merit, because ureteral injuries are not related to one’s ability to have sex. In relation to this claim, plaintiffs’ experts once again made conclusory statements without factual support in a feeble attempt to avoid dismissal of this claim. Plaintiffs’ experts conceded that Ms. Hoffman and her husband are able to have sex, but “the frequency of their engaging in sexual relations has significantly decreased.” Plaintiffs’ experts conclude the following without any basis: I disagree with the defense expert’s opinion that Olujimi Jolaosho’s loss of consortium claim should be dismissed under the flawed premise that ureteral injuries are not related to one’s ability to have sex. Clearly Shellyann Hoffman has suffered serious and permanent injuries that have greatly impacted her life as is evidenced by her medical records and her deposition testimony as well as the deposition of Mr. Jolaosho. Shellyann Hoffman testified her sex life with her husband has been meaningfully impacted due to injuries she suffers from due to the malpractice and that as a consequence the frequency of their engaging in sexual relations has significantly decreased. It is my opinion to a reasonable degree of medical certainty Shellyann Hoffman’s injuries are of a serious nature impacting her physically and mentally and that such injuries are a substantial factor in causing the loss of consortium alleged in Plaintiffs’ Pleadings. (See Plaintiff’s Expert Affidavit at ¶ 53). 21. However, plaintiffs’ experts have not provided any factual, biological or scientific support of their conclusory opinion that ureteral injuries can somehow lead to “decreased” frequency sex. The plaintiff’s experts failed to identify any medical literature which explains the -8- 8 of 9 FILED: NEW YORK COUNTY CLERK 06/02/2021 12:33 PM INDEX NO. 805302/2015 NYSCEF DOC. NO. 142 RECEIVED NYSCEF: 06/02/2021 mechanism that causes a “decrease in frequency” of sex following either transient or permanent ureteral injuries. Dr. Chai’s explanation that ureteral injuries are not related to one’s ability to have sex was not been refuted in any meaningful way, because plaintiffs’ experts are unable to argue otherwise. (Exhibit “Q” at ¶ 23). WHEREFORE, it is respectfully requested that this court grant defendants’ Motion for reargument, and, upon reargument, dismiss plaintiff’s claims related to subsequent urinary damages and the loss of consortium cause of action. Jessica Preos_____________________ Jessica L. Preis, Esq. Dated: New York, New York June 2, 2021 -9- 9 of 9