Tara Rhodes, etc., respondent, v. Matthew Dilena, etc., et al., defendants, Alan McNamara, etc., et al., appellants. (2026)

Argued—December 16, 2025

DECISION & ORDER

G/

In an action, inter alia, to recover damages for medical malpractice, the defendants Alan McNamara, Kellie Motschmann, and NYU Winthrop Hospital appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered June 2, 2023.  The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for leave to reargue her opposition to a prior motion of the defendants Alan McNamara, Kellie Motschmann, and NYU Winthrop Hospital for summary judgment dismissing the complaint insofar as asserted against them, which had been granted in an order of the same court entered January 4, 2023, and upon reargument, vacated so much of the order entered January 4, 2023, as granted those defendants' prior motion, and thereupon denied those defendants' prior motion.

ORDERED that the order entered June 2, 2023, is affirmed insofar as appealed from, with costs.

The plaintiff, on behalf of her son (hereinafter the infant), commenced this action against, among others, the defendants Alan McNamara, Kellie Motschmann, and NYU Winthrop Hospital (hereinafter collectively the defendants), inter alia, to recover damages for medical malpractice related to the infant's birth.  The plaintiff alleged, among other things, that McNamara and Motschmann, who were associated with NYU Winthrop Hospital, failed to timely perform a cesarean section, which caused injury to the infant.  The defendants moved for summary judgment dismissing the complaint insofar as asserted against them.  In an order entered January 4, 2023, the Supreme Court, inter alia, granted the defendants' motion.  Thereafter, the plaintiff moved, among other things, for leave to reargue her opposition to the defendants' prior motion for summary judgment dismissing the complaint insofar as asserted against them, contending that the court had overlooked the defendants' failure to raise, until their reply papers, their argument that a nonparty “in-house” obstetrician at NYU Winthrop Hospital was notified of the plaintiff's situation and decided not to perform a cesarean section.  In an order entered June 2, 2023, the court, inter alia, granted leave to reargue and, upon reargument, vacated so much of the order entered January 4, 2023, as granted the defendants' prior motion, and thereupon denied the defendants' prior motion.  The defendants appeal.

“ ‘Motions for reargument are addressed to the sound discretion of the court which decided the prior motion 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’ ” (Kinard v. New York City Tr. Auth., 233 AD3d 665, 666, quoting Peretz v. Zhenjun Xu, 205 AD3d 746, 747;  see CPLR 2221[d][2];  Quartararo v. Quartararo, 221 AD3d 627, 628).  Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue her opposition to the defendants' prior motion for summary judgment dismissing the complaint insofar as asserted against them (see CPLR 2221[d][2] ).  The court properly concluded that it had overlooked the defendants' failure to raise, until their reply papers, arguments regarding the “in-house” obstetrician's notice of the plaintiff's situation and purported decision not to proceed with a cesarean section, to which the plaintiff had no opportunity to respond or submit papers in surreply (see Federal Natl. Mtge. Assn. v NB 1168 Realty, LLC, 234 AD3d 938, 939;  Grocery Leasing Corp. v P & C Merrick Realty Co., LLC, 197 AD3d 625, 627;  cf.  Gormley v Marist Bros. of the Schs., Province of the United States of Am., 236 AD3d 868, 871).

Upon reargument, the Supreme Court properly denied the defendants' prior motion for summary judgment dismissing the complaint insofar as asserted against them.  “A defendant physician seeking summary judgment dismissing a medical malpractice cause of action must make a prima facie showing either that there was no departure from good and accepted medical practice or that the plaintiff was not injured by any such departure” (Cozine v. Maimonides Med. Ctr., 241 AD3d 1428, 1428–1429;  see Spellman v. Ginzburg, 241 AD3d 588, 588;  Rani v. Chaudhry, 237 AD3d 866, 867).  “Once a defendant has made such a 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” (Rani v. Chaudhry, 237 AD3d at 867 [internal quotation marks omitted];  see Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d 858, 860;  Russell v. Garafalo, 189 AD3d 1100, 1102).

“While [s]ummary judgment is [generally] not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions, as [s]uch credibility issues can only be resolved by a jury, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact” (Rani v. Chaudhry, 237 AD3d at 868;  see Cozine v. Maimonides Med. Ctr., 241 AD3d at 1428;  Elstein v. Hammer, 192 AD3d 1075, 1077).  “In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” (Rani v. Chaudhry, 237 AD3d at 868 [internal quotation marks omitted];  see Elstein v. Hammer, 192 AD3d at 1077;  Tsitrin v. New York Community Hosp., 154 AD3d 994, 996).

Here, the defendants established, prima facie, that the alleged deviations from good and accepted medical practice by McNamara and Motschmann did not cause the infant's injuries (see Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d at 860;  Russell v. Garafalo, 189 AD3d at 1102).

In opposition to the defendants' prima facie showing, however, the plaintiff raised triable issues of fact.  The plaintiff's expert's affidavit raised a triable issue of fact with regard to whether the cesarean section was timely performed.  Contrary to the defendants' contention, the expert also raised a triable issue of fact as to the element of proximate cause by opining that the defendants were negligent with regard to the delayed cesarean section and that this delay caused injury to the infant.  “When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution” (Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d at 860 [internal quotation marks omitted];  see Russell v. Garafalo, 189 AD3d at 1102).

The parties' remaining contentions are either improperly raised for the first time on appeal or without merit.

BARROS, J.P., GENOVESI, VENTURA and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court