Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after oral argument on May 13, 2025, pursuant to CPLR § 3211(a)(5), Defendants' motion to dismiss Plaintiffs' complaint as barred by the doctrines of res judicata and collateral estoppel is GRANTED.

Suing on behalf of her child, C.A.A., Plaintiff T.A., previously brought suit against Maimonides Medical Center ("Maimonides") alone, under Kings County Index No. 517301/2017 alleging that it was vicariously liable in medical malpractice for care and treatment rendered to C.A.A. during her birth admission there ("prior action"). In that action, the alleged malpractice concerned the conduct of Attending Neonatologists employed by Maimonides at the time of the infant's admission. In the present action, the named defendants are Shantanu Rastogi MD, Alex Bialik MD, Michele Dyan MD, Tania Mangones MD, and Melissa Tsai MD, each of whom the record demonstrates were Attending Neonatologists employed by Maimonides at the time of C.A.A.'s birth admission.

By Order entered January 6, 2023,^[FN1] Justice Genine Edwards granted Maimonides summary judgment, holding:

"Defendant Maimonides Medical Center is granted summary judgment dismissing the complaint as no issue of material fact exists. Plaintiff did not oppose defendant's lack of informed consent argument. Moreover, plaintiff's expert affirmations failed to raise a triable issue of fact as to whether any alleged departures were a proximate cause of the infant's injuries. Not only did plaintiff abandon multiple theories of liability and causation, plaintiff's expert affirmations were conclusory and raised a materially different theory of recovery from those pleaded in the complaint and the bill of particulars. The theory was also not alluded to in the depositions. Accordingly, the complaint is dismissed. The clerk shall enter judgment in favor of Maimonides Medical Center."

Judgment was entered by the Clerk on January 24, 2023 ^[FN2] and Plaintiffs took an appeal, which has been fully briefed and remains pending in the Appellate Division, Second Department.

Res judicata bars a party from relitigating a claim where there is: (1) a final judgment on the merits, (2) identity of parties or those in privity, and (3) the same transaction or occurrence. Matter of Hunter, 4 NY3d 260, 269 (2005); Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 347 (1999). Collateral estoppel applies when: (1) the identical issue was necessarily decided in the prior action, and (2) the party to be estopped had a full and fair opportunity to contest the issue. Kaufman v. Eli Lilly & Co., 65 NY2d 449, 455—456 (1985); Luscher v. Arrua, 21 AD3d 1005 (2d Dep't 2005).

The January 6, 2023 Order in the prior action constitutes a final judgment on the merits as to Maimonides' liability for the alleged malpractice of its Attending Neonatologists. The present Defendants—Drs. Shantanu Rastogi, Alex Bialik, Michele Dyan, Tania Mangones, and Melissa Tsai—were Attending Neonatologists employed by Maimonides during the admission at issue and stand in privity with Maimonides for purposes of res judicata. Accordingly, the Order and Judgment is a bar to any further claim premised upon the alleged malpractice of the Attending Neonatologist Defendants in the present action.

Plaintiffs had a full and fair opportunity in the prior action to litigate the care rendered by these physicians during the infant's birth admission. The theories now advanced arise from the same operative facts and transaction, and therefore fall squarely within the bar of res judicata. The pendency of Plaintiffs' appeal in the prior action does not suspend the preclusive effect of the judgment. To the extent Plaintiffs argue that different or additional evidence supports their claims here, such evidence could have been presented in the prior action and does not defeat the application of res judicata.

Because the prior judgment finally resolved the claims against Maimonides premised on the alleged malpractice of these Defendant physicians, Plaintiffs are barred from relitigating those claims. The complaint is therefore dismissed with prejudice, and the Clerk is directed to [*2]enter judgment accordingly.

This constitutes the Decision and Order of the Court.