Supreme Court, Kings County

Decided on July 6, 2026

Index No. 516109/2019

Consuelo Mallafre Melendez, J.

[*1]

Recitation, as required by CPLR 2219 (a), of the papers considered in the review:

NYSCEF #s: Seq. 14: 235—261, 293—297, 310

Seq. 15: 263-265, 298-302, 309

Seq. 16: 266-281, 303-307, 311

Seq. 17: 283-292, 308

Defendant Jorge Venegas, M.D. ("Dr. Venegas") moves for an Order, pursuant to CPLR 3212, granting summary judgment in his favor, dismissing all claims against him in this action, and removing his name from the caption (Seq. No. 14).

Defendant Wyckoff Heights Medical Center ("Wyckoff Heights") separately moves for an Order, pursuant to CPLR 3212, granting summary judgment in their favor (Seq. No. 15).

Defendants Eav Lim, D.O. ("Dr. Lim"), Bala Ravi, M.D. ("Dr. Ravi"), Omrou Alchyib, M.D. ("Dr. Alchyib"), and Derek Liang, D.O. ("Dr. Liang") separately move for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing all claims against them, and amending the caption accordingly (Seq. No. 16).

Defendant Rosemarie Schulman, as Administrator of the Estate of Harold Schulman, M.D. ("Dr. Schulman") separately moves for an Order, pursuant to CPLR 3212, granting leave to file a late motion for summary judgment and granting summary judgment in their favor (Seq. No. 17).

Plaintiff opposes all Defendants' motions.

Plaintiff commenced this action on July 23, 2019, asserting claims of medical malpractice and negligent hiring, supervision, and training on behalf of infant R.G. The claims arise from the prenatal care of the plaintiff mother on December 12, 2012 through January 23, 2013, specifically the alleged failure to recommend and place a cerclage, i.e., a stitching of the cervix to reduce the risk of premature delivery caused by cervical incompetency. Plaintiff alleges that the Defendants' failure to recommend and perform a cerclage procedure led to the premature birth of infant R.G. and related complications.

Plaintiff ("the mother" or "patient") began receiving prenatal care through Wyckoff Heights after reporting a positive pregnancy test on September 5, 2012. She returned to the prenatal clinic and emergency department on multiple occasions. The treatment at issue occurred from December 12, 2012 through January 23, 2013.

On December 12, 2012, the mother was evaluated by Defendant Dr. Lim, an attending physician at the ob/gyn clinic. She was 19 weeks pregnant, and a sonogram revealed a cervical length of 2.5 cm with funneling. Dr. Lim prescribed progesterone injections and noted "is there a role for cerclage?" in the chart. She referred the patient to Defendant Dr. Schulman for a maternal-fetal medicine consultation.

Dr. Schulman evaluated the patient on December 13. He noted her cervix length and history, including one spontaneous abortion and a full-term birth. His assessment and plan stated "Cervix is short. Agree with prophylactic regimen [progesterone] and careful follow-up."

On January 2, 2013, the mother presented to the Wyckoff Heights obstetrical triage unit with a shortened cervix of 1.4 cm at 22 weeks. Dr. Ravi was the attending physician. The mother received an intramuscular progesterone injection, and another maternal-fetal medicine consult by Dr. Schulman was requested. Dr. Schulman recommended a donut pessary, a rubber ring which sits inside the vagina to support the cervix. He noted that cerclage could be considered but "depends on MD."

On January 3, 2013, the mother again presented to the emergency department with lower abdominal and vaginal pain. Dr. Alchyib, the attending physician, co-signed a resident's note about her assessment. Her cervix was described as "closed" and the pessary was removed and reinserted. She was instructed to follow up with Dr. Schulman for cervical length measurements every 1-2 weeks.

On January 7, 2013, the mother was seen by Dr. Liang, a labor and delivery attending physician. She reported intermittent pelvic pressure and stabbing vaginal pain. On examination, she had 1 cm dilation. She was discharged with instructions to return for a Betamethasone injection.

On January 11, the patient was evaluated by a midwife and administered a Betamethasone shot. The note for this assessment and treatment was co-signed by Dr. Venegas, the ob/gyn attending physician. On examination, her membranes were intact. Dr. Schulman also examined the patient on that date and noted a cervical length of 3 cm which appeared "long and closed at this time." He recommended "maintain pessary until 37 weeks" and recheck every two weeks.

On January 23, the patient was seen again by Dr. Liang. She was noted to be high risk for preterm birth and was receiving weekly progesterone injections.

The patient ultimately went into preterm labor on [date redacted], at 28 weeks gestation. Infant R.G. was delivered vaginally at 6:54 a.m. weighing 2 pounds, 0.9 ounces. He was transferred to the NICU for respiratory support and other birth complications including clinical sepsis, anemia, feeding intolerance, retinopathy, periventricular leukomalacia, hyperreflexia, and tremors.

Plaintiff alleges that the attending ob/gyn physicians and maternal-fetal medicine consult departed from the standard of care by failing to recommend and perform a cerclage procedure in response to the mother's cervical insufficiency on her various dates of treatment in December-January. Plaintiff further alleges that this departure was a proximate cause of the infant's preterm birth and resulting physical and cognitive impairments.

"Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation was a proximate cause of the plaintiff's injuries. On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries." (Graham-Guerrier v Tercel, 245 AD3d 898, 899-900 [2d Dept 2026] [internal quotation marks and citations omitted].)

"To meet that burden, a defendant must submit in admissible form factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice" (Miller-Albert v EmblemHealth, 231 AD3d 1147, 1148 [2d Dept 2024]). "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Graham-Guerrier at 900, quoting Stewart v N. Shore Univ. Hosp. at Syosset, 204 AD3d 858, 860 [2d Dept 2022]). "Generally, summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Garcia v Hollander, 241 AD3d 651, 653 [2d Dept 2025] [internal quotation marks and citations omitted].) However, "expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Barnaman v Bishop Hucles Episcopal Nursing Home, 213 AD3d 896, 898-899 [2d Dept 2023]).

First, in support of the motion (Seq. No. 16) of multiple attending physicians, Dr. Lim, Dr. Ravi, Dr. Alchyib, and Dr. Liang, the movants submit an expert affirmation from Adiel Fleischer, M.D. ("Dr. Fleischer"), a licensed physician board certified in obstetrics and gynecology and maternal-fetal medicine.

Dr. Fleischer opines generally that the mother "was not a candidate for a cerclage" at the time she was treated by the moving physicians between December 2012 and January 2013. The expert opines that she had complaints of abdominal and vaginal pain during her pregnancy, which were contraindications for cerclage.

As to Dr. Lim specifically, the expert opines that on December 12, 2012, attending physician Dr. Lim appropriately noted that cerclage should be considered ("is there a role for cerclage?") and ordered a maternal-fetal medicine consult from Dr. Schulman. The expert opines that, according to Dr. Lim's testimony, he did not typically "deal with high-risk patients" and did not perform cerclages, and that he relied on Dr. Schulman's opinion as to whether to place a cerclage. The expert therefore opines that "these determinations were being made by the MFM specialist" and not by Dr. Lim.

The expert acknowledges that Dr. Schulman's consultation note on that date read "agree with prophylactic regimen and careful follow-up" and that Dr. Schulman did not "directly address the possibility of placing the cerclage," but he opted for progesterone injections and monitoring. The expert further opines that given the patient's history of no prior preterm births due to cervical incompetency, medical management with progesterone was in accordance with the standard of care.

With respect to Dr. Ravi on January 2, 2013, the expert states that the attending physician co-signed the resident's note (which included "spoke with attending") and ordered the placement of a donut pessary to treat her shortened cervix. The expert opines that this was a proper treatment for cervical shortening, and further opines that "Dr. Schulman made the determination as to whether there was a role for cerclage" and how to manage her cervical shortening, rather [*2]than attending physician Dr. Ravi.

The expert further opines that the treatment of Dr. Alchyib on January 3 was within the standard of care, as he inspected the cervix, described it as "closed," and referred her for continued follow-up on cervical measurements every 1-2 weeks.

Finally, the expert opines that the treatment of Dr. Liang as attending physician on January 7 complied with the standard of care. The expert notes that "no additional treatment was instituted" on that date, and it continued to be appropriate and within the standard of care to rely on the donut pessary, weekly progesterone injections, and betamethasone (for fetal lung maturity) to manage her condition.

In evaluation of the movants' submissions, the Court finds that the attending physicians have not established as a matter of law that they "relied" on maternal-fetal medicine specialist Dr. Schulman to manage the patient's cervical shortening and did not have an independent duty to recommend or order cerclage. The expert's opinions on this issue are contradicted by the records of Dr. Schulman, who did not address cerclage in his December 12, 2012 consultation note and expressly noted "cerclage? depends on MD" on January 2. There is evidence in the record that whether to recommend and place a cerclage was either a joint decision or made by the attending physician. Therefore, the expert's statements that the attending physicians had no role in deciding whether to place a cerclage and "these decisions were being made" by Dr. Schulman are conclusory, unsupported by the record, and do not establish prima facie entitlement to summary judgment on that basis.

However, the movants' expert has met their prima facie burden by opining that the mother was not a candidate for cerclage and that it was within the standard of care to manage her cervical shortening with progesterone, careful monitoring, and a donut pessary. The burden therefore shifts to Plaintiff to raise an issue of fact as to whether the movants departed from the standard of care.

In opposition, Plaintiff submits an expert affirmation from a licensed physician (name of expert redacted), board certified in obstetrics and gynecology and maternal-fetal medicine. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Plaintiff's ob/gyn and maternal-fetal medicine expert opines broadly, as to all the physician defendants, that the standard of care required the mother's cervical incompetency to be treated with cerclage on the treatment dates beginning December 12, 2012 through January 23, 2013. The expert opines that "the diagnosis and management of cervical insufficiency, including the placement of an ultrasound-indicated cerclage, a physical-examination-indicated cerclage, and a rescue (emergency) cerclage" are within the authority and scope of treatment of an attending ob/gyn in a hospital clinic setting. The expert opines that an ob/gyn attending physician "confronted with a patient presented with a sonographically shortened cervix with funneling and progressive cervical shortening on serial imaging" is required by the standard of care to recognize the need for cerclage and recommend, offer, and place or arrange for placement of a cerclage.

The expert further opines that although the patient was being followed by Dr. Schulman, the maternal-fetal medicine consult, the ob/gyn providers had an independent duty to evaluate her and recommend or perform a cerclage placement if necessary. Notably, Dr. Schulman had noted "cerclage? — depends on MD" in the chart on January 2, indicating that this decision was left to the attending physician.

At all times beginning on December 12, 2012, when the patient first exhibited cervical [*3]insufficiency, Plaintiff's expert opines that the standard of care required cerclage placement "to prolong the pregnancy for as long as possible to avoid the risks of premature birth." The expert further opines that the patient was a "suitable candidate" for cerclage placement between December 12 and January 23. The expert counters the opinion of the movant's expert, Dr. Fleischer, who opined that vaginal pain was a contraindication for the procedure and that she had no history of preterm birth. Plaintiff's expert offers a conflicting opinion that a history of preterm birth is not a prerequisite, and that her symptoms of pain attributed to the donut pessary were not a contraindication for cerclage, particularly on December 12 or January 2 when she had no symptoms.

With respect to Dr. Lim, he was the attending physician on December 12, 2012, when Plaintiff's expert opines a cerclage placement first became indicated and necessary. On that date, the mother's ultrasound revealed a cervix of 2.5 cm with funneling, and her physical examination by midwife Patricia Roman revealed cervical dilation of 2-3 cm with 50% effacement. Plaintiff's expert opines that the standard of care required placement of a cervical cerclage in these circumstances. Plaintiff's expert also notes that Dr. Lim wrote "is there a role for cerclage?" in a contemporaneous note, but he did not further recommend or offer the procedure, and the consult note from Dr. Schulman on that date did not "directly address the question." Additionally, the expert opines that Dr. Lim's testimony that he "does not deal with high-risk patients" and did not ordinarily place cerclages should not relieve him of responsibility. The expert opines that in these circumstances, Dr. Lim should have at minimum transferred the patient to another physician with more experience in cerclage placement.

With respect to Dr. Ravi, the attending physician on January 2, 2013, Plaintiff's expert opines that she also had an independent responsibility to assess the patient's cervical incompetency and need for cerclage. On that date, her cervical length was 1.4 cm, demonstrating "progressive cervical shortening" from the December 12 ultrasound. Of note, it was on this date that maternal-fetal medicine specialist Dr. Schulman recommended a donut pessary and expressly left the decision for cerclage in the hands of the attending "MD," Dr. Ravi. Rather than recommend or place a cervical cerclage, Dr. Ravi placed a "donut pessary alone." The expert opines the donut pessary was insufficient to manage her cervical shortening and constituted a departure from the standard of care on January 2, 2013.

Dr. Alchyib was the attending ob/gyn the following day, January 3, when the patient presented to the hospital with lower abdominal pain and vaginal pain following the pessary placement. Dr. Alchyib examined the patient, including her cervix by speculum, and removed and reinserted the donut pessary. Plaintiff's expert opines again that as the attending ob/gyn, the standard of care required Dr. Alchyib to review her chart, recognize her history of progressive cervical shortening, and "reassess the adequacy of the pessary-based management plan." The expert opines that Dr. Alchyib departed from the standard of care by failing to recommend, offer, and place or arrange for the placement of a cerclage on January 3, 2013.

Finally, Plaintiff opines that Dr. Liang departed from the standard of care as the attending ob/gyn physician on January 7, 2013. On that date, Dr. Liang personally evaluated and treated the patient when she presented to labor and delivery with pelvic pressure and vaginal pain. She was 23 weeks, 4 days gestation. On examination, Dr. Liang noted that her cervix was 1 cm dilated with 0% effacement and -3 station. He was also aware of her previous history of cervical incompetency and the progressive shortening on December 12 and January 2. In these circumstances, the expert opines that Dr. Liang departed from the standard of care by failing to [*4]recommend, offer, and place or arrange for placement of a cerclage on January 7.

Dr. Liang also treated the patient as the attending obstetrician on January 23, when she was 25 weeks gestation. Plaintiff's expert opines that again on that date, cerclage placement was indicated based on the clinical course of her pregnancy and her high risk of preterm birth. The expert opines that Dr. Liang departed from the standard of care on that date by not recommending or placing a cerclage.

Plaintiff also submits an expert affirmation from a licensed physician (name of expert redacted), board certified in pediatrics and neurology, with special qualifications in child neurology. The Court was presented with a signed, unredacted copy of the affirmation for in camera inspection.

Plaintiff's pediatric neurology expert opines in detail as to proximate causation and the infant's claimed injuries. They provide an opinion that infant R.G. sustained PVL (periventricular leukomalacia), a condition "characterized by white-matter lesions with loss of nerve cells," as a result of his preterm delivery. The expert states this condition is most common when an infant is born between 23-30 weeks gestation. The expert further states that the risk of severe PVL at 28 weeks gestation is 26%, whereas the risk drops to 1% at 32 weeks gestation. Additionally, the expert opines that the infant's neonatal respiratory distress syndrome, hypoxia, and ischemia — a complication of premature birth — contributed to PVL. The expert opines that the infant's claimed physical disabilities and developmental delays were proximately caused by the alleged failure to place a cerclage, which caused or contributed to the infant's birth at 28 weeks gestation.

Based on these submissions, Plaintiff's expert has raised triable issues of fact on whether each of the attending ob/gyn physicians, Dr. Lim, Dr. Ravi, Dr. Alchyib, and Dr. Liang, departed from the standard of care. On each of the dates at issue, Plaintiff's expert opines that the attending physician should have recommended and/or performed a cerclage placement in response to her clinical presentation and history, and that not doing so constituted a departure from the standard of care. "When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution" (Stewart v. North Shore University Hospital at Syosset, 204 AD3d 858, 860 [2d Dept. 2022], citing Russell v. Garafalo, 189 AD3d 1100, 1102 [2d Dept. 2020]). For this reason, summary judgment must be denied to each of the moving physicians.

The movants' expert did not opine in detail as to proximate causation of the infant's injuries, and therefore did not meet their prima facie burden on this issue. Notwithstanding, Plaintiff submitted an expert opinion from a neurologist, setting forth opinions that the alleged departures proximately caused or contributed to ongoing injuries related to his preterm birth. Thus, even if the movants had met their prima facie burden on proximate causation, Plaintiff has raised issues of fact precluding summary judgment.

Accordingly, the motion for summary judgment on behalf of Dr. Lim, Dr. Ravi, Dr. Alchyib, and Dr. Liang is denied.

Next, in support of Dr. Venegas's motion (Seq. No. 14), the movant submits an expert affirmation from Victor R. Klein, M.D. ("Dr. Klein"), a licensed physician board certified in obstetrics and gynecology and maternal-fetal medicine.

Dr. Klein opines that Dr. Venegas, another attending physician at the Wyckoff Heights labor and delivery clinic, complied with the standard of care at all times during the patient's treatment. The expert notes that Dr. Venegas's role in the patient's care was limited to a single presentation to the emergency department on January 11, 2013. On that date, Dr. Venegas co-[*5]signed a note from certified midwife Patricia Roman, who examined the patient and administered a 12 mg betamethasone injection.

Dr. Klein opines that it was appropriate within the standard of care for Dr. Venegas to sign off on the treatment and evaluation of the patient on January 11. The expert opines that the patient was being "followed by" Dr. Shulman, the maternal-fetal medicine consult who was "managing the cervical shortening." Dr. Shulman performed an ultrasound on January 11 and reported her cervical length was now 3 cm and appeared closed. The expert opines that Dr. Venegas appropriately "relied upon and followed the recommendations and plan of care of the treating physicians, including the MFM specialist, who had been seeing and managing the plaintiff throughout the pregnancy." The expert also opines that cervical incompetency may be managed with "various methods such as cerclage, pessary placement and/or progesterone given by injection," and that cerclage was not indicated for this patient on January 11, her date of treatment by Dr. Venegas, because she was over 23 weeks gestation.

Dr. Klein notes that Dr. Venegas also co-signed treatment notes as the attending physician on November 26, 2012 and February 2-5, 2013, but Plaintiff does not assert any claims of medical malpractice on those dates.

Contrary to the movant's argument, the Court finds that the scope of Dr. Venegas's duty as an attending ob/gyn physician did include reevaluating the patient's cervical insufficiency and recommending, offering, or placing a cerclage, if indicated. As discussed above, Dr. Shulman's prior note of "cerclage? depends on MD" is evidence that it was within the treatment undertaken by attending physician Dr. Venegas to determine whether a cerclage was indicated and necessary, and to recommend, order, or perform such procedure.

The fact that Dr. Venegas did not personally examine the patient on January 11 also does not relieve him of malpractice liability, as he was the attending physician who supervised and co-signed the treating midwife's evaluation. As Plaintiff argues, "co-signature is the formal mechanism by which the attending discharges his supervisory responsibility for the care documented."

Notwithstanding, Dr. Venegas has established prima facie entitlement to summary judgment based on the submissions. The movant's expert offered an opinion that not recommending or offering a cerclage placement on January 11, 2013 did not constitute a departure from the standard of care, because this procedure was not appropriate for a patient at 23 weeks gestation. The expert also opines that her condition was being appropriately addressed through the donut pessary and progesterone injections. The burden therefore shifts to Plaintiff to raise an issue of fact.

In opposition, Plaintiff's ob/gyn and maternal-fetal medicine expert opines that as the attending physician on January 11, 2013, Dr. Venegas had an "independent duty to recognize the ongoing cervical insufficiency, to reassess the adequacy of the pessary-based management plan, and to recommend, offer, and place (or arrange for placement of) a cervical cerclage" or at least "reconsult the maternal-fetal medicine service and obtain a definitive recommendation on cerclage."

Plaintiff's expert notes that she presented on January 11 for a Betamethasone injection, which reflected "the clinical judgment that preterm delivery was anticipated." The expert opines that Dr. Venegas had "access to and responsibility to review" the patient's record of a shortening cervix, which was documented at 2.5 cm with funneling at 19 weeks (December 12, 2012) and 1.4 cm at 22 weeks (January 2, 2013), and that he should have recommended or offered to place [*6]a cerclage.

Plaintiff's expert also directly counters the movant's expert opinion that the patient was no longer a candidate for cerclage on January 11 because she was over 23 weeks gestation. In the opinion of Plaintiff's expert, "cerclage placement is not categorically contraindicated at 23 weeks 6 days."

Based on evaluation of these submissions, Plaintiff has raised a triable issue of fact with respect to Dr. Venegas's treatment as the attending ob/gyn on January 11. The conflicting expert opinions as to whether or not a cerclage was contraindicated at 23 weeks presents an issue of fact which must be resolved by a jury.

Additionally, Dr. Venegas's expert opines in a general manner that the alleged departures did not proximately cause the infant's injuries. Even if they had met their prima facie burden on this issue, Plaintiff's neurology expert raised issues of fact as discussed above.

For these reasons, the motion for summary judgment on behalf of Dr. Venegas (Seq. No. 14) is denied.

Turning to the motion of Wyckoff Heights (Seq. No. 15), the movant submits an expert affirmation from Nancy Kirshenbaum, M.D. ("Dr. Kirshenbaum"), a licensed physician board certified in obstetrics and gynecology and maternal-fetal medicine.

Dr. Kirshenbaum offers opinions as to the acts and omission of Dr. Schulman, who was an employee of Wyckoff Heights at the time at issue. She opines that the patient "was cared for at an attending level, with subspeciality MFM consultation" by Dr. Schulman. The expert opines that throughout the patient's treatment, Dr. Schulman made recommendations in "communication and collaboration" with her attending physicians.

The expert states that cervical incompetency is a condition where the cervix becomes "thinned and shortened and it is associated with preterm delivery." The expert opines that the patient was properly diagnosed with this condition by ultrasound on December 12, 2012. In the expert's opinion, it is within the standard of care to manage cervical incompetency with "increased surveillance, progesterone, and steroids for fetal lung maturity, all of which was done." The expert also opines that a pessary was placed in the vagina and later adjusted, which was "not a deviation from the standard of care" in managing cervical incompetency. The expert also notes that on January 11, an ultrasound by Dr. Schulman showed her cervix had "normal appearance" and appeared "long and closed at this time," indicating it was being appropriately managed.

The expert opines that although cerclage is a simple procedure, it is "associated with complications including bleeding, infection, rupture of membranes and early delivery." For this reason, the expert opines that it was appropriate and within the standard of care to "defer cerclage" for a patient like the mother who had "no prior history of an incompetent cervix" in her previous pregnancies.

Based on these submissions, the Court finds that Wyckoff Heights has established prima facie entitlement to summary judgment based on the acts and omissions of Dr. Schulman, setting forth expert opinions that his treatment and recommendation of a donut pessary, surveillance, and medical management were within the standard of care, and that not recommending cerclage was not a deviation from the applicable standard of care due to the risks associated with the procedure.

In opposition, Plaintiff submits the aforementioned affirmation from their obstetrics and gynecology and maternal-fetal medicine expert.

The expert again counters the movant's expert opinions that cerclage was not indicated for the patient, and they opine that the standard of care required Dr. Schulman to recommend, offer, or place a cerclage in response to her December 12 findings of 2.5 cm cervix with funneling and physical examination showing 2-3 cervical dilation with 50% effacement at 19 weeks gestation.

The expert further opines that on December 12, Dr. Schulman deviated from the standard of care by entering a consult note "stating only that the cervix is short, and agreeing with the prophylactic regimen and careful follow-up," rather than addressing the attending physician's question of considering cerclage. The expert opines that again on January 2, the standard of care required Dr. Schulman as a maternal-fetal medicine consult "to provide a clear and definitive recommendation that cervical cerclage was indicated for this patient," rather than leave the decision to the attending "MD."

The expert opines that a donut pessary "at most, provides mechanical support." Plaintiff's expert also disputes whether Dr. Schulman's January 11 ultrasound showed that "pessary-based management was working." Plaintiff's expert opines that because that ultrasound was performed with the donut pessary in place, it did not "reflect the native length of the cervix" and "its presence alters the apparent length and configuration of the cervix on ultrasound." Thus, the expect opines that the "decision to use a donut pessary in lieu of cerclage was a departure from the standard of care."

Based on evaluation of these submissions, Plaintiff's expert has raised triable issues of fact as to whether Dr. Schulman departed from the standard of care as a maternal-fetal medicines specialist by not recommending and placing a cerclage on his relevant treatment dates from December 2012-January 2013. Accordingly, the part of Wyckoff Heights' motion (Seq. No. 15) seeking summary judgment as to their vicarious liability for Dr. Schulman is denied.

The Court notes that Wyckoff Heights does not address any potential vicarious liability claims against them on behalf of co-defendants Dr. Lim, Dr. Ravi, Dr. Alchyib, or Dr. Liang in their moving papers. As discussed above, issues of fact remain as to the alleged acts and omissions of those defendants. The issue of whether Wyckoff Heights bears vicarious liability for these attending physicians through an employment relationship or the Mduba doctrine is not before the Court in this motion (see Fuessel v Chin, 179 AD3d 899 [2d Dept 2020]; Mduba v Benedictine Hosp., 52 AD2d 450 [3d Dept 1976]).

Plaintiff does not oppose the part Wyckoff Heights' motion seeking to dismiss the cause of action for negligent hiring, supervision, or training. Accordingly, Wyckoff Heights' motion (Seq. No. 15) is granted to the extent of dismissing the negligent hiring, supervision, and training claims only, and the motion is otherwise denied.

Finally, the Estate of Dr. Schulman separately moves for summary judgment (Seq. No. 17), although their motion was filed beyond the deadline of this Part. The Note of Issue in this action was filed on December 8, 2025. While the other movants filed their motions for summary judgment before the 90-day ^FN1 deadline of March 8, 2026, the motion on behalf of Dr. Schulman's estate was filed an additional 30 days later on April 8, 2026. Plaintiff opposes the motion as untimely.

An extension of time to file a summary judgment motion shall only be permitted by stipulation of the parties or with leave of the court upon good cause shown (see CPLR 3212 [a]; Brill v City of New York, 2 NY3d 648 [2004]). To demonstrate good cause, the movant must provide "a satisfactory explanation for the untimeliness" (Brill at 652). The court may "accept law office failure as a reasonable excuse . . . where the claim is supported by a detailed and credible explanation for the default," rather than amounting to a "perfunctory claim of law office failure" (Lanza v M-A-C Home Design and Constr. Corp., 188 AD3d 855, 856 [2d Dept 2020]).

Here, the movant provided a detailed and credible explanation that the delay resulted from internal personnel changes within the law office and a lack of consent from the client to change attorneys, although the motion was eventually filed without resolving this issue. The Court finds this is sufficient to demonstrate a satisfactory explanation rather than "no excuse at all, or a perfunctory excuse" (Brill at 652).

Furthermore, Dr. Schulman's motion for summary judgment substantively incorporates and adopts the expert opinions submitted by Wyckoff Heights, which were discussed above. The vicarious liability claims against Wyckoff Heights and the direct claims against Dr. Schulman arise from the same acts and omissions. Plaintiff also relies on their previously discussed expert affirmations in opposition to Dr. Schulman's motion. Thus, it would not further delay or prejudice any party for the court to decide Wyckoff Heights and Dr. Schulman's motions together.

For the reasons previously discussed, based on the parties' submitted expert affirmations, there remain issues of fact as to whether Dr. Schulman deviated from the standard of care by failing to recommend or perform a cerclage, and whether that alleged deviation proximately caused the infant's preterm birth and related injuries. Thus, the motion for summary judgment on behalf of Dr. Schulman's estate (Seq. No. 17) is denied.

Lastly, Plaintiff discusses the issue of lack of informed consent in their opposition papers, but this separate cause of action was never pled in their Complaint. This claim is therefore not properly before the Court in this motion.

Accordingly, it is hereby:

ORDERED that Dr. Venegas's motion (Seq. No. 14) for summary judgment is denied; and it is further

ORDERED that Wyckoff Heights's motion (Seq. No. 15) for summary judgment is granted to the extent of dismissing the claims against them for negligent hiring, training, or supervision, and denied as to any vicarious liability claims against them; and it is further

ORDERED that Dr. Lim, Dr. Ravi, Dr. Alchyib, and Dr. Liang's motion (Seq. No. 16) for summary judgment is denied; and it is further

ORDERED that the motion of Dr. Schulman's estate (Seq. No. 17) for leave to file a late summary judgment motion and seeking summary judgment in their favor, is granted to the extent of permitting the extension of time, and the underlying summary judgment motion is denied.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez

J.S.C.