II v. David Barney, M.D., Raouf Hanna, M.D., Miroslaw Wojciula-Tomaszewski, M.D., Kingsbrook Jewish Medical Center, and Julio Rimarachin, M.D., Defendants. (2026)

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

NYSCEF Doc. #s 159-161, 170-172 by Def. Dr. Rimarachin

NYSCEF Doc. #s 1, 167-168 by Plaintiff

NYSCEF Doc. #s 163-164, 169 by KJMC Defs.

Upon review of the submitted papers and after oral argument held on February 24, 2026, pursuant to CPLR § 2221(d), the motions by Defendant Julio Rimarachin, M.D., (Motion Sequence #6) and Defendants David Barney, M.D., Raouf Hanna, M.D., Miroslaw Wojciula-Tomaszewski, M.D., and Kingsbrook Jewish Medical Center (hereinafter "KJMC Defendants") (Motion Sequence #7), each seeking reargument of this Court's Decision and Order dated September 13, 2025, are DENIED.

BACKGROUND

This medical malpractice and wrongful death action is brought on behalf of decedent Carine Gustave, alleging that Defendants negligently rendered medical care between July 20 and July 23, 2018, which resulted in Ms. Gustave's death on July 24, 2018.¹

On December 6, 2024, Defendants filed their respective motions for summary judgment,² which Plaintiff opposed.³ In the Decision and Order dated September 13, 2025, this Court granted Dr. Rimarachin's motion in part and denied the KJMC Defendants' motion in its entirety.⁴

Defendants now seek reargument of that September 13, 2025 Decision and Order, asserting that the Court overlooked or misapprehended matters of fact or law concerning the expert submissions.⁵ Additionally, they contend the Court misapplied the Dead Man's Statute.⁶

LEGAL STANDARD

CPLR § 2221(d) permits a motion to reargue based solely on matters of fact or law allegedly overlooked or misapprehended by the Court in its prior decision. It expressly prohibits consideration of any new facts not presented in the original motion. Ahmed v. Pannone, 116 AD3d 802 (2d Dep't 2014) (quoting Grimm v. Bailey, 105 AD3d 703, 704 [2d Dep't 2013]). Although whether to permit reargument rests within the sound discretion of the Court, such relief is not intended to provide repeated opportunities to revisit issues already decided or raise arguments not previously presented. Id. at 805 (quoting Anthony J. Carter, DDS, P.C. v. Carter, 81 AD3d 819 [2d Dep't 2011]).

DISCUSSION

Defendants have not identified any fact or legal principle that this Court overlooked or misapprehended in its September 13, 2026 Decision and Order, as required under CPLR § 2221(d).

Dr. Rimarachin (Motion Sequence #6)

Dr. Rimarachin argues that the Court overlooked or misapplied facts or law in determining that Plaintiff's obstetrics/gynecology expert raised triable issues of fact. The Court's prior Decision and Order explicitly considered the expert's affirmation and concluded that it was neither speculative or conclusory. Conflicting expert opinions preclude summary judgment.⁷ See Gupta v. Lescale, 224 AD3d 668, 669 (2d Dep't 2024).

KJMC Defendants (Motion Sequence #7)

The KJMC Defendants contend that this Court overlooked facts or misapplied the law when determining that their expert, Dr. Robert H. Meyer, failed to establish their prima facie entitlement to summary judgment.⁸ The September 13, 2025 Decision addressed the deficiencies in Dr. Meyer's affirmation with specificity, concluding that the movants failed to meet their burden. See In v. Maimonides Med. Ctr., 240 AD3d 764, 765 (2d Dep't 2025); Martinez v. Orange Reg'l Med. Ctr., 203 AD3d 910, 912 (2d Dep't 2022).

Application of the Dead Man's Statute as to All Defendants

All Defendants argue that the Court misapplied the Dead Man's Statute. The Court properly concluded that deposition testimony by the defending physicians—who are interested parties—based on communications with decedent and not reflected in the medical records, cannot be considered in support of their summary judgment motions.⁹ The Court also notes that its conclusions regarding the statute were not outcome-determinative.

CONCLUSION

Accordingly, pursuant to CPLR § 2221(d), the motions by Defendant Dr. Rimarachin (Motion Seq. 6) and by the KJMC Defendants (Motion Seq. 7) seeking reargument of this Court's Decision and Order dated September 13, 2025, are denied.

This constitutes the Decision and Order of the Court.

Date: August 21, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.    See NYSCEF Doc. # 1.

2.    See NYSCEF Doc. #s 88-108 (KJMC Defendant's motion for summary judgment); NYSCEF Doc. #s 109-130 (Dr. Rimarachin's motion for summary judgment).

3.    See NYSCEF Doc. #s 135-144.

4.    See NYSCEF Doc. #s 151-152.

5.    See NYSCEF Doc. # 160 at 8-16; NYSCEF Doc. #s 164 at 9-23.

6.    See NYSCEF Doc # 16028-30; NYSCEF Doc. # 164 at 6-9.

7.    See NYSCEF Doc. # 151 at 11.

8.    See id. at 8-9.

9.    See id. at 8 n. 48.

Patria Frias-Colón, J.