Maria Auxiliadora Romero Zambrano, Plaintiff, v. NYU JEFFREY LUCIDO DPM (2026)

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review:

NYSCEF #s: 26-35, 36-37, 38

Plaintiff moves (Seq. No. 2), pursuant to CPLR 2221 (d) and (e), for an Order granting leave to reargue and/or renew this Court's prior Decision and Order dated April 10, 2026, and upon reargument and/or renewal, denying the motion to dismiss of Defendants Jeffrey V. Lucido, DPM ("Dr. Lucido") and NYU Langone Hospital Brooklyn ("NYU") and restoring Plaintiff's claims against them. Defendants Dr. Lucido and NYU oppose the motion.

By Decision and Order dated April 10, 2026, this Court granted Dr. Lucido and NYU's motion to dismiss Plaintiff's claims against them as time barred pursuant to CPLR 3211 (a) (5). The Court held that Plaintiff failed to establish the existence of a continuous course of treatment between Dr. Lucido and Plaintiff's subsequent providers at NYU. It is uncontested that the last date Dr. Lucido treated Plaintiff was May 31, 2022. Plaintiff brought this action on August 1, 2025, beyond the two years and six months statute of limitations for medical malpractice actions. The Court determined that the continuous treatment doctrine did not apply to this case and that Plaintiff's claims against Dr. Lucido and NYU were untimely. Thus, the action against them was dismissed as filed beyond the statute of limitations.

Now, Plaintiff moves to reargue the prior motion claiming that the Court overlooked or misapprehended matters of facts and/or law. She also moves to renew the motion, arguing that new evidence is now available with respect to additional medical records. Defendants oppose the motion.

As a threshold matter, Defendants argue that Plaintiff's motion should be denied in its entirety because Plaintiff's Affirmation in Support, at 8,677 words, exceeds the 7,000-word limit for attorney affirmations set forth in 22 NYCRR § 202.8-b (a), and because it was filed without leave of Court. Courts have discretion to reject oversized submissions filed without permission, but also may disregard a "mistake, omission, defect or irregularity" if a substantial right of a party is not prejudiced (CPLR 2001). Given the absence of any demonstrated prejudice to Defendants—who filed a full opposition addressing the motion on the merits— the Court, in the exercise of its discretion, declines to reject the motion on this ground alone and considers the papers on the merits.

A motion to renew pursuant to CPLR 2221 (e) shall be based upon new facts not offered on the prior motion that would change the prior determination, or shall demonstrate that there has been a change in the law that would change the prior determination. The party seeking renewal on these grounds must also show " 'reasonable justification' for the failure to present such facts on the original motion" (Rowe v NYCPD, 85 AD3d 1001, 1003 [2d Dept 2011], quoting CPLR 2221 [e] [3]). "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation" (Worrell v Parkway Estates, LLC, 43 AD3d 436, 437 [2d Dept 2007], quoting Elder v Elder, 21 AD3d 1055, 1055 [2d Dept 2005]). The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2d Dept 2001]).

Plaintiff seeks renewal arguing that clinical records obtained from NYU's electronic medical record system, after the original motion was submitted, indicate that on May 31, 2022 defendant Dr. Lucido, a podiatrist who treated Plaintiff at NYU, referred Plaintiff to Dr. Raymond Walls, an orthopedic surgeon at NYU. She claims that the "new" evidence includes Dr. Walls' June 16, 2022 consultation note documenting the referral and includes several years of subsequent treatment records.

In opposition to the renewal motion, Defendants argue that these are Plaintiff's own records, accessible to her at all relevant times through her Epic/MyChart patient portal, that Plaintiff knew or should have known these records existed prior to the commencement of this action, and that Plaintiff could have submitted them in opposition to the underlying motion. Defendants further argue that Plaintiff has offered no justification for failing to obtain and submit these records during the months her original opposition was pending.

The Court agrees. The mere fact that records are housed in the defendant's system does not excuse Plaintiff's failure to timely secure her own treatment records. Plaintiff could have obtained them directly from her providers or could have accessed them online through the portal before the return date of the original motion to support their position. In fact, Plaintiff conceded that "the records were obtained independently by Plaintiff through the NYU Langone MyChart patient portal after the original opposition was filed." Failing to obtain these records — the plaintiff's own medical records — is not a reasonable justification for their omission in opposing the prior motion.

Assuming arguendo that the Court accepted, as reasonable, Plaintiff's proffered justification for the omission of her own medical records in opposition to the original motion, the newly submitted medical records do not change the Court's prior determination.

Under the continuous treatment doctrine, the limitations period does not begin to run until the end of the course of treatment if three conditions are met: (1) the patient "continued to seek, and in fact obtained, an actual course of treatment from the defendant physician during the relevant period"; (2) the course of treatment was "for the same conditions or complaints underlying the plaintiff's medical malpractice claim"; and (3) there is "continuity of treatment" (Gomez v Katz, 61 AD3d 108, 111-112 [2d Dept 2009]). The continuous treatment doctrine rests on the principle that the physician-patient relationship is marked by continuing trust and confidence and that "the patient should not be put to the disadvantage of questioning the doctor's skill in the midst of treatment, since the commencement of litigation during ongoing treatment necessarily interrupts the course of treatment itself" (id. at 111, citing Massie v Crawford, 78 NY2d 516, 519 [1991]). Moreover, "discrete and complete" examinations, separated in time, do not constitute continuous treatment (Nykorchuck v Henriques, 78 NY2d 255, 259 [1991]).

It is also well established that "a plaintiff in a medical malpractice action may not avoid the effect of CPLR 214—a by attempting to impute continuous treatment by one physician to another physician based solely upon allegations of a vague and amorphous 'relationship' between the two medical professionals (Cox v Kingsboro Med. Grp., 214 AD2d 150, 151 [2d Dept 1995], affd 88 NY2d 904 [1996]). To invoke the continuous treatment doctrine across multiple providers, a plaintiff must establish either a continuing relationship between the patient and the defendant physician or "an agency or other relevant relationship" between the defendant physician and the subsequent treating provider (id. at 154).

Furthermore, a provider's affiliation with the same hospital or medical practice, standing alone, is insufficient to establish the requisite relationship, and subsequent treatment by different providers cannot be imputed to the defendant physician merely because of that shared affiliation (Cox, 214 AD2d at 153-155). Likewise, mere referral relationships are insufficient (id. at 156-157).

Here, although Plaintiff continued to receive treatment within the NYU Langone Health system after May 31, 2022, the newly submitted records do not establish the type of continuing medical relationship contemplated by the principles underlying the continuous treatment doctrine. Dr. Lucido referred Plaintiff to Dr. Walls, who thereafter referred Plaintiff to other physicians within the NYU Langone Health system. Plaintiff argues that the records reflect at least seventeen (17) documented treatment encounters for the left foot between June 16, 2022 and July 22, 2025 with the final encounter occurring just ten days before this action was commenced on August 1, 2025. However, there is no involvement between Plaintiff and Dr. Lucido during any of these visits. No treatment was rendered to Plaintiff by Dr. Lucido at any point in time after May 2022. Plaintiff's visit with Dr. Walls sixteen days after the final appointment with Dr. Lucido marked the beginning of a separate physician-patient relationship, not a continuation of treatment by Dr. Lucido. Nothing in the medical record demonstrates that Dr. Lucido remained involved in Plaintiff's care after May 31, 2022, that he supervised or participated in subsequent treatment decisions, that he consulted with Dr. Walls or the later providers to further a coordinated treatment plan, or that he otherwise retained responsibility for Plaintiff's ongoing care. The referral marked the termination of Dr. Lucido's treatment.

Significantly, nothing in the medical record supports Plaintiff's contention that the subsequent providers rendered treatment on behalf of Dr. Lucido or pursuant to a coordinated treatment plan in which he remained a participant. Rather, the records reflect that after Plaintiff's last visit with Dr. Lucido, she sought treatment from numerous providers from different specialties, including orthopedics, pain management, radiology, rehabilitation, primary care, and podiatry, and each physician exercised independent medical judgment in evaluating and treating Plaintiff's complaints. At most, the records demonstrate a string of referrals from subsequent providers and discrete treatment by many within the same healthcare system. The newly submitted records do not establish the requisite agency or other relevant relationship necessary to impute the later treatment to Dr. Lucido.

Plaintiff vehemently claims that the subsequent physicians' "own contemporaneous notes establish that the post-May 2022 care was directed at the very surgical complications of Dr. Lucido's procedures" (affirmation of plaintiff's counsel in reply at 3). However, the Court notes that while treatment rendered by other physicians after Dr. Lucido's last visit in May 2022 may have served to address issues related to Dr. Lucido's surgery, the medical records clearly establish that Plaintiff never again sought treatment from Dr. Lucido after the May 2022 visit. "[I]t is well settled that 'the continuing nature of a diagnosis' is insufficient to invoke the continuous treatment doctrine (Couch v County of Suffolk, 296 AD2d 194, 197 [2d Dept 2002], quoting Nykorchuck v. Henriques, 78 NY2d 255, 259 [1991]; McDermott v. Torre, 56 NY2d 399, 406 [1982]).

Plaintiff attempts to establish that there was "coordinated care" across multiple treating providers, noting that Dr. Walls, an orthopedic surgeon, reviewed "many of Dr. Lucido's notes." Contrary to Plaintiff's argument, these circumstances further establish the termination of Plaintiff's relationship with Dr. Lucido, whom the patient did not return to after May 2022. Simply reviewing a patient's prior medical history cannot establish a relevant relationship between distinct providers.

Plaintiff's reliance on the physical therapy records submitted herein to extend the dates of treatment is likewise unavailing. As a matter of law, treatment rendered by different providers cannot be imputed to a defendant physician absent the requisite agency or relationship between them (Cox, 214 AD2d at 153-155). This argument is similarly unsubstantiated on the facts as Plaintiff's treatment at NYU Langone Rusk Rehabilitation Brooklyn consisted of physical therapy sessions between October 2020 and October 2021, all of which concluded well before Plaintiff's final visit with Dr. Lucido on May 31, 2022. Those therapy sessions therefore cannot extend the limitations period beyond Dr. Lucido's last treatment.

Accordingly, even if the newly submitted medical records were considered on this renewal motion, they would not warrant a different result. The branch of Plaintiff's motion seeking leave to renew, and upon renewal to reinstate Plaintiff's claims against Defendants, is therefore denied.

The Court turns next to Plaintiff's request for leave to reargue. CPLR 2221 (d) provides that when a party moves to reargue a prior motion, the reargument shall be "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion." "Motions for reargument are addressed to the sound discretion of the court which decided the original motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some reason mistakenly arrived at its earlier decision" (Fuessel v Chin, 179 AD3d 899, 900-901 [2d Dept 2020], citing Bueno v Allam, 170 AD3d 939, 940 [2d Dept 2019]; Ito v 324 E. 9th St. Corp., 49 AD3d 816 [2d Dept 2008]).

Plaintiffs seek to reargue this Court's prior Decision and Order on multiple grounds: (1) that the Court failed to apply its own reasoning in Black v Aspen Dental Mgt., Inc. (2025 WL 3201514, 87 Misc 3d 1235(A) [Sup Ct 2025]); (2) that the Court mischaracterized Plaintiff's evidentiary submission on the original motion as consisting only of "billing codes"; and (3) that the Court overlooked NYU's separate institutional liability, independent of Dr. Lucido's individual liability. None of these grounds warrants reargument.

Plaintiff has not demonstrated that the Court overlooked or misapprehended any material fact or controlling principle of law in rendering its prior Decision and Order. This Court's Decision in Black is inapplicable herein as it is factually distinguishable. There, the defendants participated in a comprehensive treatment plan, and multiple providers within the same practice treated the plaintiff pursuant to a single, coordinated course of dental care (Black, 2025 WL 3201514, *4). Those records established that the plaintiff remained a patient of the practice itself, rather than of an individual provider (id.).

Plaintiff also has not demonstrated that the Court misapprehended the evidentiary record by referring to Plaintiff's submission as consisting of "billing codes." Regardless of how Plaintiff characterizes the evidence submitted on the original motion, that evidence did not establish the applicability of the continuous treatment doctrine.

Finally, contrary to Plaintiff's contention, on the law and facts, NYU does not face separate institutional liability on the claims asserted here. Rather, NYU's alleged liability is vicarious and derivative of Dr. Lucido's alleged medical malpractice. As the action against Dr. Lucido was filed untimely, the claims against NYU are likewise beyond the statute of limitations. Accordingly, Plaintiff cannot invoke the continuous treatment doctrine against NYU independently of Dr. Lucido's treatment dates.

To the extent Plaintiff relies on medical records on the reargument portion of this motion that were not before the Court on the original motion, such evidence is not properly considered on a motion for leave to reargue. Likewise, the evidence submitted on the original motion did not establish the applicability of the continuous treatment doctrine.

The Court notes that Plaintiff's Complaint also asserted a second cause of action against NYU Langone for negligent hiring, retention, training, and supervision, which was addressed and dismissed in the Court's April 10, 2026 decision and order. Although Plaintiff mentions this claim in their instant notice of motion and attorney affirmation, they do not offer any substantive argument to reargue that part of the prior motion, and therefore the branch of Plaintiff's motion to reargue the dismissal of this claim is denied.

Plaintiff therefore has not identified any factual or legal matter that the Court overlooked or misapprehended in reaching its prior determination. Accordingly, the branch of Plaintiff's motion seeking leave to reargue is denied and the court adheres to its original Decision.

It is hereby:

ORDERED that the branch of Plaintiff's motion (Mo. Seq. 2) seeking leave to reargue, pursuant to CPLR 2221 (d), this Court's Decision and Order dated April 10, 2026, is DENIED; and it is further

ORDERED that the branch of Plaintiff's motion (Mo. Seq. 2) seeking leave to renew, pursuant to CPLR 2221 (e), this Court's Decision and Order dated April 10, 2026, is DENIED; and it is further

ORDERED that the Decision and Order dated April 10, 2026, dismissing this action in its entirety, remains in full force and effect.

This constitutes the decision and order of the Court.

ENTER.

Hon. Consuelo Mallafre Melendez, J.S.C.

Consuelo Mallafre Melendez, J.