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 hearing oral argument on September 2, 2025, pursuant to CPLR §§ 2221(d) and 3212(b), Plaintiffs' motion for leave to reargue (Motion Sequence # 4) Defendant Dr. Matthew Silverman's motion for summary judgment is GRANTED, and upon reargument, Dr. Matthew Silverman's motion for summary judgment (Motion Sequence # 3) is DENIED.

BACKGROUND

On XX XX, 2014, 32-year old Plaintiff Hasina B. Runa (the "mother"), gave birth to her third daughter, Infant Plaintiff A.A., at Maimonides Medical Center.^[FN1] The delivery, performed by Defendant Matthew Silverman, M.D., was vaginal with vacuum assistance and without episiotomy. The infant sustained a brachial plexus injury (Erb's palsy), Horner's syndrome (ptosis or a drooping upper eyelid), and a right humerus fracture.^[FN2]

Plaintiffs allege that Dr. Silverman committed medical malpractice by failing to perform a timely cesarean section,^[FN3] improperly using vacuum assistance, and failing to obtain informed consent.^[FN4] They assert that the mother's pre-gestational diabetes, obesity and weight gain increased the risk of shoulder dystocia, which was encountered during delivery of the infant.^[FN5]

Following completion of discovery, and a note of issue was filed and Dr. Silverman (among others) moved for summary judgment. The Court granted in part Dr. Silverman's summary judgment motion by Decision/Order dated March 31, 2025.^[FN6] Plaintiffs now seek reargument. Following oral argument, the Court reserved its decision.

STANDARD OF REVIEW

A motion for leave to reargue is within the sound discretion of the Court and granted where the Court overlooked or misapprehended the facts and/or the law. See Peak Prop. & Cas. Ins. Corp. v. Mulverhill, 239 AD3d 1169, 1170 (3d Dept. 2025); McGill v. Goldman, 261 AD2d 593, 594 (2d Dept. 1999).

Summary Judgment is a drastic remedy depriving a litigant of their day in court and should only be granted where there are no triable issues of fact. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). The Court's role is not to resolve factual disputes or assess credibility, but simply to determine whether such issues exist. Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). In doing so, the evidence must be viewed in the light most favorable to the non-moving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

In medical malpractice cases, the essential elements are:

(1) a deviation or departure from accepted medical practice, and

(2) evidence that such departure was a proximate cause of the injury. Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716 (2d Dept. 2022).

To establish a cause of action for lack of informed consent, a plaintiff must show:

(1) the provider failed to disclose alternatives and reasonably foreseeable risks that a reasonable practitioner would have disclosed,

(2) a reasonably prudent patient in the same position would not have undergone the treatment if fully informed, and

(3) the lack of informed consent is a proximate cause of the injury. Cox v. Herzog, 192 AD3d 757, 758 (2d Dept. 2021).

On a motion for summary judgment in a medical malpractice action, the defendant bears the initial burden of establishing either no departure from accepted medical practice or that any departure was not the proximate cause of the plaintiff's injury. Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022). If the defendant meets this burden, the plaintiff must submit competent medical evidence to raise a triable issue of fact. Cerrone v. North Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021). Where the parties submit conflicting expert opinions, summary judgment is inappropriate, as such credibility issues must be resolved by a jury. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024).

DISCUSSION

Plaintiffs demonstrated that the Court overlooked a controlling principle of law: the presence of conflicting testimony from expert witnesses., thereby creating a credibility battle that is properly left to a jury for its resolution. See Noga v. Bros. of Mercy Nursing & Rehabilitation Ctr., 198 AD3d 1277, 1278 (4th Dept. 2021), reargument denied 200 AD3d 1746 (4th Dept. 2021). The parties' experts dispute whether Dr. Silverman should have performed a cesarean section, whether excessive force was used during deliver, and whether informed consent was properly obtained. See Loaiza v. Lam, 107 AD3d 951, 953 (2d Dept. 2013) (conflicting expert opinions regarding whether improper force was placed on the infant plaintiff during delivery and whether a C-section should have been performed.); Martin v. Siegenfeld, 70 AD3d 786, 788 (2d Dept. 2010) (conflicting expert opinions regarding whether improper force was placed upon the plaintiff during labor and whether a C-section should have been performed.), criticized on other grounds by Stukas v. Streiter, 83 AD3d 18, 27 (2d Dept. 2011);^[FN7] Munoz v. Rubino, 37 Misc [*2]3d 1216(A), 2012 NY Slip Op. 52057(U), *3-4 (Sup Ct, Orange County 2012) (conflicting expert opinions regarding whether excessive traction was the cause of the infant's injuries and whether the delivering obstetrician engaged in excessive traction).^[FN8]

These factual disputes, particularly regarding the standard of care and causation, are for a jury to resolve. The Court finds Plaintiffs raised triable issues of fact sufficient to defeat summary judgment. For example:

• whether Dr. Silverman properly monitored the fetus during labor;

• whether Dr. Silverman should have performed C-section instead of a vaginal delivery;

• whether Dr. Silverman's performance of the vacuum-assisted vaginal delivery without episiotomy was timely and reasonable;

• whether Dr. Silverman used excessive force and traction in delivering the infant; or

• whether a reasonable patient in the mother's position would have elected C-section had she been given these options.

Further, "the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and what is foreseeable and what is normal may be the subject of varying inferences." Romanelli v. Jones, 179 AD3d 851, 856 (2d Dept. 2020) (alterations and internal quotation marks omitted). It is for a trier of fact to determine whether the neonatal trauma (a fracture of the right humerus) was a reflection of the refractory nature of the case, rather than of the delivery itself.

CONCLUSION

Accordingly, it is ORDERED that Plaintiffs' motion for leave to reargue is granted.

It is further ORDERED that, upon reargument, the Court's March 31, 2025 Order is modified to the extent that Defendant Dr. Silverman's motion for summary judgment is denied.

The caption is amended to reflect the dismissal of Maimonides Medical Center as follows:

against

This constitutes the Decision and Order of the Court.