Upon the foregoing cited papers and after considering oral argument on September 30, [*2]2025, pursuant to CPLR § 3212(b), the Court issues the following Decision and Order:^[FN1]

• Defendant Paula Prezioso, M.D.'s ("Dr. Prezioso") motion for summary judgment (Motion Sequence # 2) is GRANTED and DENIED in part. Specifically, the second cause of action for lack of informed consent against her is dismissed as abandoned. The remainder of Dr. Prezioso's motion is denied.

• The joint motion by Defendants Chloe Free-Nozil, M.D. ("Dr. Free-Nozil"), Regine Brioche, M.D. ("Dr. Brioche"), and Tribeca Pediatrics, PLLC ("Tribeca" and collectively with Drs. Free-Nozil and Brioche, the "Tribeca Defendants") for summary judgment (Motion Sequence # 3) is GRANTED and DENIED in part. Specifically, the second cause of action for lack of informed consent against all Tribeca Defendants, and the fifth cause of action for negligent hiring/credentialing against Tribeca, are dismissed, in each instance, as abandoned. The remainder of the Tribeca Defendants' motion is denied.^[FN2]

This matter arises from a medical malpractice action brought by Plaintiffs on behalf of infant F.J.O., alleging negligent care rendered by multiple pediatric providers during the neonatal and early infancy period.^[FN3]

Summary judgment is a drastic remedy and should only be granted where there is no genuine issue of material fact. Kolivas v. Kirchoff, 14 AD3d 493, 493 (2d Dept. 2005). The Court's role is not to resolve factual disputes or assess credibility, but to determine whether such disputes exist. Laris v. City of New York, 236 AD3d 637, 638 (2d Dept. 2025). "In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party." Gambarian v. Spivakov, 241 AD3d 1529, 1529 (2d Dept. 2025).

The essential elements of a medical malpractice claim are:

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

(2) evidence that such departure was a proximate cause of injury."

"In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause [*3]of any injury to the plaintiff." Attia v. Klebanov, 192 AD3d 650, 651 (2d Dept. 2021). "A defendant's expert's...affirmation that merely recount[s] the treatment rendered and opine[s] in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice is insufficient to meet this burden." Marsh v. City of New York, 191 AD3d 973, 973-974 (2d Dept. 2021) (internal quotation marks omitted). "A defendant's failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 912-913 (2d Dept. 2022). "Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden." Alao v. Richmond Univ. Med. Ctr., 213 AD3d 722, 723 (2d Dept. 2023) (internal quotation marks omitted). Where the parties submit conflicting medical expert opinions, summary judgment is inappropriate because "[s]uch credibility issues can only be resolved by a jury." Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept. 2005).

Defendant Paula Prezioso, M.D.:

The second cause of action for lack of informed consent is dismissed as abandoned, as Plaintiffs failed to oppose this branch of the motion. See Gobind v. Nercessian, 227 AD3d 464 (1st Dept. 2024); Clarke v. NYC Health & Hosps., 210 AD3d 631 (2d Dept. 2022).

However, pursuant to CPLR § 3212(b), the remainder of Dr. Prezioso's motion is denied. The record presents multiple triable issues of fact, including:

(1) The Neonate's Characteristics and History (Risk Factors): whether Dr. Prezioso, as the neonate's (F.J.O.'s) discharging physician on her second day of life, failed to consider F.J.O.'s characteristics and history (or risk factors) which were typical for neonates with bilateral congenital dislocation of hips, such as:

(a) the neonate's female gender;

(b) the mother's primiparity, meaning that the neonate was her first child; and

(c) the neonate's birth weight of 4,280 grams (equivalent to 9 pounds, 7 ounces), classifying her large for gestational age (LGA).^[FN4]

(2) The Neonate's Clinical Screening: whether Dr. Prezioso properly performed a bilateral hip screening of the neonate on the second day of life before discharging her;^[FN5] namely:

(1) whether Dr. Prezioso properly interpreted the neonate's Ortolani and Barlow clinical [*4]tests ^[FN6] as being negative ^[FN7] despite the subsequently documented bilateral congenital (meaning, since birth) dislocation of her hips;^[FN8]

(2) whether Dr. Prezioso's index of suspicion for dysplasia should have been raised by RN Lois Guillen's previously documented clinical finding of bilateral "clicks" in the neonate's hips on the first day of life ^[FN9] and whether, based solely on RN Guillen's finding of "clicks," Dr. Prezioso should have referred the neonate for an ultrasound study and to a pediatric orthopedic surgeon for a consultation before discharging her home;^[FN10]

(3) whether there is a diagnostic clinical significance between "clicks" on the one hand, and "clunks" on the other hand, if elicited during the performance of the Ortolani and Barlow exams in a neonate;^[FN11]

(4) whether Dr. Prezioso's finding on discharge examination that the neonate's hips were "symmetric"^[FN12] was not sufficient to rule out bilateral congenital dislocation of hips because "the physical exam findings can be subtle when [as is the instance here] the dislocations are bilateral, as there is no normal leg to compare to";^[FN13]

(5) whether Dr. Prezioso's finding on discharge screening that the neonate's hips had "[a] full range of motion"^[FN14] overlooked the fact that her "[h]ip abduction was asymmetric," with abnormal abduction of 70 degrees in her left hip, compared to the normal abduction of 80 degrees in her right hip;^[FN15] and

(6) whether Dr. Prezioso's discharge screening of the neonate for hip dysplasia should have included a clinical examination for the leg-length discrepancy, known as the Galeazzi sign.^[FN16]

(3) No Referral of Neonate for an Ultrasound Study and/or to a Pediatric Orthopedist: whether Dr. Prezioso should have referred the neonate on her second day of life for a bilateral hip ultrasound study and/or referred her to a pediatric orthopedist, in each instance, before discharging her, in light of RN Guillen's previously documented bilateral clicks in her hips on the first day of life, as well as the aforementioned risk factors.^[FN17]

(4) Proximate Cause: whether a timely diagnosis of F.J.O.'s bilateral congenital dislocation of hips before being discharge would have permitted conservative treatment with a pediatric harness, would have stopped (or slowed down) the progression of her dysplasia, and would have avoided bilateral surgery with a spica cast.^[FN18]

Contrary to Dr. Prezioso's contention, Plaintiffs' expert pediatrician is qualified to opine on these issues, and the existence of conflicting expert opinions precludes summary judgment.^[FN19] See e.g. Donohue v. Grossman, 233 AD3d 1003, 1006 (2d Dept. 2024) ("the plaintiffs' expert established that her qualifications were sufficient to render an opinion as to the propriety of the wound care provided to the injured plaintiff"); Elstein v. Hammer, 192 AD3d 1075, 1078 (2d Dept. 2021) ("a physician who was board certified in internal medicine, infectious diseases, and emergency medicine...was qualified to deliver an opinion as to whether the defendants departed from good and accepted practice in the failure to diagnose and treat malaria and in administering the flu vaccine to the plaintiff").

Contrary to Dr. Prezioso's further contention, the Tribeca Defendants' subsequent failure to diagnose F.J.O. with hip dysplasia does not sever proximate causation as a matter of law. Dr. Prezioso had an independent duty to conduct a proper pediatric examination. See Datiz v. Shoob, 125 AD2d 628, 630 (2d Dept. 1986) ("In light of the consulting expert's [subsequent] failure to diagnose the [congenital hip dysplasia], and considering [the referring pediatrician's] independent duty to conduct a proper pediatric examination, there is a reasonable connection between his failure to diagnose [congenital hip dysplasia] and the ultimate injury sustained by the plaintiff."), affd 71 NY2d 867, 869 (1988) ("defendant, as the initial wrongdoer, cannot escape liability merely by showing that the subsequent treating physician to whom plaintiff was referred was also negligent").

Tribeca Defendants

The Tribeca Defendants' motion is likewise granted in part and denied in part.

The second cause of action for lack of informed consent and the fifth cause of action for negligent hiring/credentialing against Tribeca are also dismissed as abandoned as Plaintiffs did not oppose these claims.

Pursuant to CPLR § 3212(b), the remainder of the motion is denied, as the record raises triable issues of fact, including:

(1) Inadequate/Incomplete Pediatric Surveillance. Whether Drs. Free-Nozil and Brioche (and vicariously as to Tribeca) failed to adequately examine F.J.O. at each of her visits at Tribeca from August 10, 2020 to October 4, 2021 for the combined duration of 14 months, such that her bilateral congenital hip dislocation progressed to its most severe grade of IV on the International Hip Dysplasia Institute scale, which combined with her acetabular indices in the 40s, indicated that she was suffering from severe dysplasia in both hips (as confirmed by the AP "frog" pelvis X-ray taken at nonparty Columbia-Presbyterian University Hospital in October 2022).^[FN20]

(2) No Referral of Infant for an Ultrasound Study and/or to a Pediatric Orthopedist. Whether Drs. Free-Nozil and Brioche (and vicariously Tribeca) should have referred F.J.O. for an ultrasound study and/or to a pediatric orthopedist at each of her visits to Tribeca, particularly when starting at "9 months of age, F.J.O. began to exhibit gross motor delays pertaining to crawling, pulling to stand, and weight bearing."^[FN21]

(3) Missed Window of Opportunity for Conservative Treatment with a Pediatric Harness. Whether, by virtue of the Tribeca Defendants' failure to diagnose F.J.O. with congenital hip dysplasia, "[she] missed the critical window for conservative care, such treatment with the use of a Pavlik harness, a non-invasive soft brace used to position the infant's hips in proper alignment," she "was left with no option but to undergo surgery and endure twelve weeks in a body cast."^[FN22]

(4) Proximate Cause: whether a timely diagnosis of F.J.O.'s bilateral congenital dislocation of hips at one or more of her earliest visits to Tribeca (rather than at 14 months of age) would have permitted conservative treatment with either a pediatric harness or, if diagnosed between 6 and 12 months of age), with less invasive, non-surgical treatment, such as bracing or closed reduction.^[FN23]

See generally DiMartini v. Hospital of Albert Einstein Coll. of Medicine, 166 AD2d 201, 201 (1st Dept. 1990) (summary judgment denied where there were triable issues of fact as to whether defendant physician's failure to diagnose congenital hip dysplasia at the time of infant plaintiff's presentation to him at six years of age "made her disability more severe and was a departure from good and accepted medical practice"); Carter v. Stakofsky, 2016 WL 1546870, *3 (Sup Ct, Richmond County 2016) ("[T]here are clear conflicting opinions as to when the infant's hip was actually dislocated. [Defense expert's] opinion that somewhere between the two[-] and four[-]month visit 'the hip gradually migrated out of the incompetent socket' is directly belied by the opinions of both the plaintiff's radiology and neonatology experts who concluded with a reasonable degree of medical certainty that the infant's hip was dislocated at birth. These contradicting opinions in turn lead to conflicting determinations as to what the proper course of treatment for the infant should have been and warrant denial of both motions [for summary judgment].").^[FN24]

The Court considered the parties' remaining contentions and found them either moot or unavailing in light of its determination. All relief not expressly granted herein is denied.

Accordingly, both motions are granted to the extent that the cause of action for lack of informed consent against these Defendants are dismissed as abandoned, and the remainder of their motions are denied.

This constitutes the Decision and Order of the Court.