MOHAMAD v. CSOMPO (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered July 22, 2024.  The order, insofar as appealed from, granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging medical malpractice.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging medical malpractice is denied.

The plaintiff commenced this action against the defendants, Michael Csompo and New York Presbyterian Queens Hospital (hereinafter NYPQ), alleging, among other things, medical malpractice related to the birth of the plaintiff's child.  The plaintiff alleged, inter alia, that during the delivery of her child, Csompo, who was employed by NYPQ, failed to properly respond to certain complications, which caused injuries to the plaintiff's child.  The defendants moved, among other things, for summary judgment dismissing the cause of action alleging medical malpractice.  In an order entered July 22, 2024, the Supreme Court, inter alia, granted that branch of the defendants' motion.  The plaintiff appeals.

“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).  “To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars” (Wagner v. Parker, 172 AD3d 954, 954 [internal quotation marks omitted];  see Prunty v. Mehta, 223 AD3d 760, 761;  Bacalan v St. Vincents Catholic Med. Ctrs. of N.Y., 179 AD3d 989, 991–992).  However, “[t]he burden is not met if the defendant's expert renders an opinion that is conclusory in nature or unsupported by competent evidence” (Wei Lin v. Sang Kim, 168 AD3d 788, 788;  see Hiegel v. Orange Regional Med. Ctr., 219 AD3d 910, 913;  Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 912).  “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 at 912–913;  see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

Here, the defendants' submissions failed to establish, prima facie, that they did not depart from good and accepted medical practice or that any departure was not a proximate cause of the injuries to the plaintiff's child.  Victor Klein, the defendants' expert physician, failed to address conflicting evidence in the record as to whether fundal pressure was applied during the labor and delivery of the plaintiff's child (see Hiegel v. Orange Regional Med. Ctr., 219 AD3d at 913;  Martinez v. Orange Regional Med. Ctr., 203 AD3d at 913).  Because Klein's affirmation relied upon a disputed fact, specifically, that no fundal pressure was applied, and, therefore, that there was no use of lateral or excessive traction on the plaintiff's child during the labor and delivery, it was insufficient to establish, prima facie, that the defendants did not deviate or depart from accepted medical practice or that such deviation or departure was not a proximate cause of the plaintiff's child's injuries (see Hiegel v. Orange Regional Med. Ctr., 219 AD3d at 913;  Martinez v. Orange Regional Med. Ctr., 203 AD3d at 913).  Since the defendants failed to eliminate all triable issues of fact, the Supreme Court should have denied that branch of their motion which was for summary judgment dismissing the medical malpractice cause of action regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d at 853;  Hiegel v. Orange Regional Med. Ctr., 219 AD3d at 914).

The parties' remaining contentions either are improperly raised for the first time on appeal, are without merit, or need not be reached in light of our determination.