Eric Davidson, Plaintiff, v. NYU NYU (2026)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc. #s 74-92, 104 by Defs. Dr. Rozell, Dr. Hoque, and NYU Langone

NYSCEF Doc. #s 95-101 by Plaintiff

Upon review of the submitted papers and after oral argument on March 24, 2026, pursuant to CPLR § 3212, the motion by Defendants Joshua C. Rozell, M.D., Enamul Hoque, P.A., and NYU Langone Hospitals s/h/a NYU Langone Hospital-Brooklyn ("NYU Brooklyn") seeking summary judgment is GRANTED and DENIED in part. Specifically, the motion is granted as to Plaintiff's cause of action for lack of informed consent and denied as to the remainder of their claims. This Decision and Order modifies the oral Decision of March 24, 2026, denying this motion in its entirety.

BACKGROUND

Plaintiff Eric Davidson alleges that on July 31, 2022, Defendant Dr. Rozell negligently performed a total hip replacement, causing a sciatic nerve injury that resulted in a left foot drop and additional left lower-extremity injuries requiring revision surgery.¹ Plaintiff further alleges negligent pre-operative, intra-operative, and post-operative care by all Defendants.²

Plaintiff commenced this action on June 28, 2023, asserting medical malpractice.³ After the filing of the Note of Issue, Defendants moved for summary judgment,⁴ which Plaintiff opposed.⁵

STANDARD OF REVIEW

Summary judgment is a "drastic remedy" that should be granted only where no material issues of fact exist. Kolivas v. Kirchoff, 14 AD3d 493, 493 (2d Dep't 2005). The Court must view the evidence in the light most favorable to the nonmoving party. Gambarian v. Spivakov, 241 AD3d 1529, 1529 (2d Dep't 2025). The Court's role is not to resolve factual disputes or assess credibility, but to determine whether such disputes exist. Laris v. City of NY, 236 AD3d 637, 638 (2d Dep't 2025).

Medical malpractice involves a negligent act or omission by a healthcare provider during treatment or substantially related to medical care. See Butler v. Wyckoff Heights Med. Ctr., 233 AD3d 745, 747 (2d Dep't 2024). To establish a cause of action for medical malpractice, a plaintiff must show:

1. A deviation from accepted medical practice; and

2. That the deviation was a proximate cause of injury.

See Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716 (2d Dep't 2022).

A defendant seeking summary judgment must establish either that there was no departure from accepted practice or that any departure was not a proximate cause of injury. Dye v. Okon, 203 AD3d 702, 703 (2d Dep't 2022). If the defendant meets this burden, the plaintiff must submit competent medical evidence raising triable issues. Cerrone v. N. Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dep't 2021). Where the parties submit conflicting expert opinions, generally summary judgment is precluded. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dep't 2024).

DISCUSSION

Lack of Informed Consent

Defendants first argue that Plaintiff failed to plead lack of informed consent.⁶ Plaintiff's Verified Complaint asserts a single cause of action for medical malpractice. The Bill of Particulars assert lack of informed consent only against the NYU Brooklyn Defendants.⁷ See Kelapire v. Kale, 189 AD3d 1197, 1198 (2d Dep't 2020) (A claim for lack of informed consent is a distinct and separate cause of action); Rizzo v. Estate of Polifrone, 192 AD3d 564, 564 (1st Dep't 2021). Because Plaintiff did not plead such a distinct cause of action, the lack of informed consent claims are dismissed.

Defendants' Prima Facie Showing

Defendants satisfied their prima facie burden through the expert affirmation of Dr. Michael Leslie, D.O., a board-certified orthopedic surgeon. Dr. Leslie opined that all aspects of Defendants' care—pre-operative assessment, surgical technique, and post-operative evaluation—comported with accepted orthopedic standards and did not cause Plaintiff's injuries.⁸

Regarding pre-operative care, Dr. Leslie opined that Dr. Rozell properly evaluated Plaintiff through physical examination and review of pre-operative imaging to select the appropriate surgical approach.⁹ Regarding intra-operative care, he opined that the placement and positioning of the acetabular component, including the use of 35-millimeter screws was appropriate and employed safeguards to avoid neurological injury.¹⁰ Regarding post-operative care, he opined that PA Hoque and NYU Brooklyn staff performed appropriate examinations, neurovascular assessments, and timely diagnostic imaging,¹¹ and that Dr. Rozell appropriately addressed possible nerve impingement by performing revision surgery on August 1, 2022.¹²

Accordingly, the NYU Brooklyn Defendants established their prima facie entitlement to summary judgment. See Attia v. Klebanov, 143 N.Y.S.3d 408, 410 (2d Dep't 2021); Cohen v. Kalman, 863 N.Y.S.2d 63, 64 (2d Dep't 2008).

Plaintiff's Opposition

Plaintiff submitted a redacted affirmation from a board-certified orthopedic surgeon  ¹³ opining that Dr. Rozell misselected and mispositioned acetabular screws—placing screws longer than appropriate and extending beyond the posterior cortex into an unsafe zone—thereby causing the sciatic nerve injury.¹⁴

Regarding PA Hoque, Plaintiff's expert opined that PA Hoque failed to appreciate, document, or communicate signs of post-operative sciatic nerve injury, resulting in approximately 13 hours of additional nerve compression and contributing to Plaintiff's injuries.¹⁵

Given the conflicting expert opinions, triable issues of fact exist as to deviation and causation and therefor summary judgment on Plaintiff's malpractice claim is therefore inappropriate. Feinberg v. Feit, 23 AD3d 517 (2d Dep't 2005).

CONCLUSION

Accordingly, the motion for summary judgment by the NYU Brooklyn Defendants is granted solely as to Plaintiff's cause of action for lack of informed, which is dismissed. The remainder of Defendants' motion is denied.

This constitutes the Decision and Order of the Court.

Date: August 23, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.    See NYSCEF Doc. #s 75 3, 78, 80.

2.    See NYSCEF Doc. #s 75 3, 80.

3.    See NYSCEF Doc. # 78.

4.    See NYSCEF Doc. #s 74-92.

5.    See NYSCEF Doc. #s 95-101.

6.    See NYSCEF Doc. # 7538-45.

7.    See NYSCEF Doc. #s 78, 80.

8.    See NYSCEF Doc. # 76.

9.    See id.44.

10.    See id.50-64.

11.    See id.65.

12.    See id.62-65.

13.    See NYSCEF Doc. # 96.

14.    See id.35-54.

15.    See id.55-60.

Patria Frias-Colón, J.