PLAINTIFF v. DEFENDANTS (2026)

Upon review of the submitted papers and after oral argument on February 24, 2026, pursuant to CPLR § 3212(b), the motion by Defendant Staten Island University Hospital ("SIUH") seeking summary judgment is GRANTED and DENIED in part. Specifically, Plaintiff's second and third causes of action, sounding in lack of informed consent and negligent hiring/retention/supervision, respectively, are dismissed as abandoned against SIUH. The remainder of SIUH's motion is denied.¹

BACKGROUND  ²

This medical malpractice action is brought by Plaintiff Michelle M., on behalf of her son, L.M., alleging negligent care by SIUH during labor and delivery on xx/xx/1995. Plaintiff asserts that, despite signs indicating the urgent need for a C-section, SIUH allowed the mother to proceed with a vaginal delivery, resulting in L.M.'s injuries, including static encephalopathy of perinatal origin with right-sided hemiparesis and asymmetric growth.³

The factual record reflects the sequence of events beginning with the mother's spontaneous rupture of membranes and vaginal bleeding around noon on xx/xx/1995.⁴ She arrived at SIUH by ambulance at 12:46 pm and was admitted at 1:15 pm under the care of Dr. Michael Grecco, while Dr. Louis Grecco was rounding in Labor and Delivery at that time.⁵ According to the paramedics' report, Michelle M. informed them she had been bleeding vaginally for 20 minutes, as she was waiting arrival of the ambulance.⁶ By admission, she was already in labor.⁷ At the time of the mother's arrival at SIUH, Dr. Louis Grecco was then rounding on the labor and delivery patients in SIUH. It is undisputed that the mother was a private patient of Defendants Michael Grecco, M.D. and Louis Grecco, M.D.

At 1:15 pm, SIUH obstetrics resident Jose Medrano performed a bedside sonogram and noted a large gush of bloody fluid.⁸ Between 1:30 pm and 2:40 pm, Dr. Louis Grecco examined the mother, diagnosed placental abruption (separation of placenta from the uterus), and prepared for a possible C-section.⁹ He obtained consent  ¹⁰ and ordered blood typing and matching.¹¹

A three-hour gap-coverage period followed, from 2:40 pm until Dr. Michael Grecco arrived at 5:35 pm.¹² During that time, two undisputed events occurred:

1. Mid-Afternoon Sonogram:

A mid-afternoon sonogram between 3:50 pm and 4:10 pm, performed by an SIUH maternal-fetal specialist, revealed retroperitoneal clots, probable placental abruption, and a biophysical profile score of 0—signifying severe fetal stress and warranting immediate C-section.¹³ Dr. Michael Grecco conceded in his pretrial testimony that a biophysical profile score of 0 was an indication for a C-section.¹⁴ No such procedure was offered or performed.¹⁵

The sonogram report did not appear in SIUH's maternal records  ¹⁶ and according to Dr. Michael Grecco's deposition testimony, he received it in his office practice on xx/xx/1995, twelve days after the birth.¹⁷ Also, SIUH's maternal records confirm that Dr. Louis Grecco was at her bedside at the commencement of the mid-afternoon sonogram at 3:50 pm, but not later.¹⁸

2. Concerning Fetal Heart Rate ("FHR") Tracings:

For a portion of the gap-coverage period (between 2:40 pm and 5:35 pm) continuous fetal monitoring showed concerning FHR tracings.¹⁹ Nursing staff monitored the FHR strips during this time  ²⁰ and instructed the mother to observe the monitor herself.²¹ Dr. Michael Grecco became concerned at approximately 6:15 pm, when alerted by the nursing staff to fetal tachycardia,²² and he urged maternal pushing at 6:20 pm  ²³

The Court identified at least one disputed event during the gap-coverage period:

Questionable Vaginal Examination at 4:15 pm:

A 4:15 pm nursing note reported 3 cm cervical dilation and bloody discharge, bearing a signature purporting to be "L. Grecco." and that her vaginal discharge was "bloody."²⁴ The signature did not match Dr. Louis Grecco's earlier signature but instead matched Dr. Michael Grecco's signature, with a cursive "L" added.²⁵

The mother delivered vaginally at approximately 6:37 pm (approximately one hour after the expiration of the gap-coverage period), with the aid of an episiotomy. Overall, the mother's labor lasted for a total of six hours and forty minutes from 12 noon to 6:40 pm The record is conflicting as to whether the placenta was delivered spontaneously or manually.²⁶ Although the placenta appeared intact on delivery, it was not submitted to pathology. Nothing in the record indicates that the placenta was visually examined after delivery for any delayed appearance of blood clots.

STANDARD OF REVIEW

A hospital is generally not liable for the acts of a private attending physician chosen by the patient when hospital staff merely follow the physician's orders, unless the staff commit independent negligence or follow orders that contradict accepted practice. Cham v. St. Mary's Hosp. of Brooklyn, 72 AD3d 1003, 1004 (2d Dep't 2010).

A defendant seeking summary judgment in a medical malpractice case must demonstrate the absence of material factual disputes regarding deviation from accepted practice and proximate causation. Rosenthal v. Alexander, 180 AD3d 826, 827 (2d Dep't 2020) The moving defendant must address the factual allegations set forth in the bill of particulars and provide competent medical proof supporting the claimed absence of negligence. Cham, 72 AD3d at 1005. Only upon such a showing does the burden shift to the plaintiff. Id.

DISCUSSION

Here, SIUH failed to establish its prima facie entitlement to judgment as a matter of law as to Plaintiff's cause of action for medical malpractice. In support of its summary judgment motion, SIUH submitted an affirmation from its expert, Michele Silverstein, M.D.,²⁷ who focused primarily on the fact that the mother was under the care of private attending physicians, Defendants Dr. Michael Grecco and Dr. Louis Grecco.²⁸ This fact is not in dispute and not dispositive given the broader allegations in the bill of particulars.²⁹

Dr. Silverstein's opinion that SIUH staff appropriately followed the Grecco's treatment plan and had no basis to intervene, did not address the mid-afternoon sonogram performed by an SIUH maternal-fetal health specialist, or its critical findings.³⁰

Furthermore, in her conclusion on the issue of causation, Dr. Silverstein did not address the specific injuries alleged in the bill of particulars. Her reliance on Apgar scores of 9/9 and a venous pH of 7.24  ³¹ overlooked the subjective nature of Apgar scores  ³² and the limited relevance of venous blood pH to neonatal acidotic status.³³

Dr. Silverstein's affirmation failed to address key factual allegations of the bill of particulars and her opinion was contradicted by the record. Her opinions on negligence and causation were conclusory and insufficient to satisfy SIUH's prima facie burden. Dr. Silverstein failed to articulate facts to support her opinion that SIUH staff properly managed the mother's labor. Cham, 72 AD3d at 1005-1006; Cerny v. Williams, 32 AD3d 881, 884 (2d Dep't 2006); Indelicato v. Wyckoff Heights Hosp., 205 AD2d 664, 665 (2d Dep't 1994); see Hiegel v. Orange Reg'l Med. Ctr., 219 AD3d 910, 913 (2d Dep't 2023).

In any event, Plaintiff's expert raised triable issues of fact, including:

1. Whether the mid-afternoon sonogram findings constituted an emergency requiring a stat C-section, and whether failure to perform one caused the infant's injuries.

2. Whether Dr. Louis Grecco's lack of a plan for an immediate C-section was so contraindicated that SIUH staff, including the maternal-fetal specialist and residents, were required to intervene, and whether failure to do so caused the injuries.

3. Whether SIUH staff departed from accepted practice by failing to monitor the mother during the Greccos' absence and failing to act upon findings of placental abruption and concerning fetal heart tracings.³⁴

See Paul Pezulich v. Michael Grecco, M.D., 206 AD3d 827, 830 (2d Dep't 2022); Fink v. DeAngelis, 117 AD3d 894, 896 (2d Dep't 2014); Motto v. Beirouti, 90 AD3d 723, 724-725 (2d Dep't 2011). Cf. Bedard v. Klein, 88 AD3d 754, 755 (2d Dep't 2011).

CONCLUSION

The Court reviewed the parties' remaining arguments and found them without merit or moot. All relief not expressly granted are denied.

Accordingly, Defendant SIUH's motion for summary judgment is granted only to the extent that Plaintiff's second and third causes of action are dismissed as abandoned. The caption shall be amended to reflect the passing of Dr. Louis Grecco and the appointment of Gary Grecco as Administrator c.t.a. with limitations, solely for the purpose of defending the estate in this action, and shall read as follows:

Index # 26955/2005

L.M., an Infant by his Mother and Natural Guardian, Michelle M.,

Plaintiff,

against

Michael Grecco, M.D., Gary Grecco as Administrator c.t.a. for the Estate of Louis Grecco, M.D., Deceased, Kok Min Kyan, M.D., Jorge Vargas, M.D., Staten Island University Hospital, Emanuel Laza, M.D., and Ernest Visconti, M.D.,

Defendants.

This constitutes the Decision and Order of the Court.

Dated: April 23, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.    See Gobind v. Nercessian, 227 AD3d 464, 465 (1st Dep't 2024) ("Plaintiff's causes of action alleging lack of informed consent and negligent hiring, retention, and supervision should be dismissed as Plaintiff did not address those claims in her opposition to the motion [and thus] abandoned those claims."); Clarke v. N.Y.C. Health & Hosps., 210 AD3d 631, 633 (2d Dep't 2022) ("Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging lack of informed consent as the plaintiffs failed to address or specifically oppose that branch of the motion.").

2.   When quoting from the medical records, the Court spelled out all abbreviations and corrected typographical errors. Although the medical records occasionally use military time, the Court has converted such entries into standard time for consistency and clarity.

3.   NYSCEF Doc. # 167, Physician's Affirmation, dated February 23, 2026, ¶ 24.

4.   NYSCEF Doc. # 149, SIUH's maternal records, at 000013 (Uniform Intrapartum Record).

5.    Id.at 000034 (Nursing Assessment Parent/Child Health).

6.   Id. at 000005 (Ambulance Call Report).

7.   NYSCEF Doc. # 149 at 000014 (Uniform Intrapartum Records).

8.   NYSCEF Doc. # 145, Dr. Michael Grecco's EBT transcript, at 316, lines 5-25 (deciphering Dr. Medrano's handwritten progress note at SIUH's maternal records, at 000020).

9.   NYSCEF Doc. # 149 at 000018 (Progress Notes).

10.    Id. at 000006 (Permission for Operative and/or Diagnostic Procedure and/or Treatment).

11.    Id. at 000018 (Progress Notes).

12.    See NYSCEF Doc. # 145, at 379, lines 5-24; NYSCEF Doc. # 145 at 497, lines 12-20.

13.   NYSCEF Doc. # 145, at 487-488, lines 24-2.

14.    See id. at 518, lines 18-21.

15.   NYSCEF Doc. # 149 at 000014 (Uniform Intrapartum Records) (reflecting that the mother delivered her baby vaginally, with the aid of an episiotomy, at 6:37 p.m.).

16.   NYSCEF Doc. # 145 at 492-493, lines 14-2 (confirming that the mid-afternoon sonogram report is contained in Dr. Michael Grecco's office records, not in the mother's SIUH's chart, and that he received and initialed the report on xx/xx/1995).

17.    See id. at 518, lines 3-21.

18.    Cerny v. Williams, 32 AD3d 881, 884 (2d Dep't 2006) ("The absence of a notation of [a physician's] presence is not proof that she [or he] was not present, but it does not establish her [or his] presence either.").

19.   NYSCEF Doc. # 149 at 000014 (Uniform Intrapartum Record); NYSCEF Doc. # 145 at 49-50, lines 8-2.

20.    See id. at 000039.

21.   NYSCEF Doc. # 143, Mother's EBT transcript, at 221-222, lines 25-23.

22.   NYSCEF Doc. # 149 at 000022 (Progress Notes).

23.    See id. at 000022 (Progress Notes).

24.    See id. at 000038 (Progress Notes).

25.    See id. Dr. Louis Grecco's genuine signature for the 1:30 p.m. note used a block letter "L," and his last name appeared in separate, block- style letters as ("G-r-e-c-c-o."). In contrast, the questioned 4:15 p.m. signature used cursive, connected letters—"L. Grecco"—nearly identical to Dr. Michael Grecco's cursive signature ("M. Grecco") on his 5:40 p.m. note. Unfortunately, Dr. Louis Grecco was not deposed before he passed away in 2017.

26.    See NYSCEF Doc. # 149, compare 000015 and 000017 (Uniform Intrapartum Record, Dr. Michael Grecco's notes, both dated xx/xx/1995, and timed at 7:20 p.m. and 7:22 p.m., respectively), with 000021 (Progress Note by Dr. Kok Min Kyan, dated xx/xx/1995 and timed at 2:10 a.m.).

27.   NYSCEF Doc. # 139, Expert Affirmation of Michele Silverstein, M.D.

28.    See id. # 13923, 25-39, 32.

29.   NYSCEF Doc. # 142, Verified Bill of Particulars as to SIUH, dated January 23, 2006, ¶ 3.

30.   NYSCEF Doc. # 139, Dr. Silverstein's Affirmation, ¶¶ 28-29, with a reiteration in ¶ 32.

31.    See id. 30.

32.    See Brian M. Casey, Donald D. McIntire & Kenneth J. Leveno, The Continuing Value of the Apgar Score for the Assessment of Newborn Infants, NEJM, Vol. 344, No. 7 (Feb. 15, 2001), pg. 471 ("[the] use of the Apgar score for the prediction of long-term neurologic outcome is inappropriate"); ACOG Committee Opinion, Use and Abuse of Apgar Score, No. 174, July 1996, International J. of Gyn. & Obstetrics, Vol. 54, at 304 ("75% of children with cerebral palsy had normal Apgar scores at birth"). For example, in Del Maestro v. Michael Grecco, M.D., 2001 WL 35816626 (Queens Cnty. Sup. Ct. 2001), revd on other grounds 16 AD3d 364 (2d Dep't 2005), a baby boy with the "Apgar scores...[of] nine...at one...minute and ten...at five...minutes, commonly regarded as perfect," nonetheless "suffer[ed] from cerebral palsy and a right-sided hemiparesis...[since] birth."

33.   NYSCEF Doc # 167, Physician's Affirmation, ¶ 27.

34.    Id. ¶¶ 18 and 22.

Patria Frias-Colón, J.