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: 6-14, 17-30, 31

Defendants NYU Langone Hospitals, sued herein as NYU Langone Hospital Brooklyn ("NYU Langone") and Jeffrey V. Lucido, DPM ("Dr. Lucido") move for an Order, pursuant to CPLR 3211 (a) (5), CPLR 3211 (a) (7), and CPLR 214-a, to dismiss this action in its entirety as time barred by the statute of limitations, or in the alternative, to dismiss this action on the grounds of collateral estoppel and/or res judicata (Seq. No. 1).

Plaintiff does not oppose the part of the motion seeking to dismiss the second cause of action for negligent hiring and retention, and otherwise opposes the motion.

Defendants filed an affirmation in reply exceeding the 4,200-word limit of Uniform Court Rules 202.8-b. The Court granted permission for the oversized reply and has considered all papers herein.

On August 1, 2025, Plaintiff commenced an action against Defendants under Index No. 526138/2025 (Action #1). Plaintiff's Complaint was substantively identical to the instant action, asserting claims of medical malpractice, negligent hiring/retention/training/supervision, and negligence, arising from podiatric surgical treatment by Dr. Lucido at NYU Langone.

Action #1 was dismissed by a decision and order of this court dated April 10, 2026, holding that the action was time-barred by the statute of limitations. Plaintiff's last date of treatment by podiatrist Dr. Lucido was May 31, 2022, and the two-year-and-six-month period to bring a medical malpractice claim expired on or about November 30, 2024. The Court rejected Plaintiff's argument that the continuous treatment doctrine was applicable and found that the treatment of subsequent physicians at NYU Langone could not be imputed to Dr. Lucido in these circumstances. The Court further dismissed Plaintiff's claims against NYU Langone in Action #1, as they sounded entirely in vicarious liability for Dr. Lucido's treatment and care, which was time-barred. Additionally, the Court dismissed the second cause of action for negligent hiring and the third cause of action for general negligence, as the claims on their face arose from medical malpractice and the alleged acts were within the scope of Dr. Lucido's employment.

On May 13, 2026, Plaintiff filed a motion in Action #1 to renew and/or reargue the motion to dismiss. On the same date, Plaintiff filed a new Summons and Complaint under this index number (Action #2). The instant action asserted the same essential facts and allegations against Dr. Lucido and NYU Langone, except that the language "from on or about August 14, 2020, and continuing through at least March 2026" was added regarding the dates of treatment. In addition to the three causes of action asserted in Action #1, a fourth cause of action for "res ipsa loquitur" was added.

The motion to renew/reargue and reinstate Plaintiff's claims in Action #1 was denied in its entirety. In a decision and order dated August 11, 2026, the Court adhered to its holding that Plaintiff's podiatric malpractice claims against Dr. Lucido and NYU Langone were time-barred, that the continuous treatment doctrine did not apply, and that Action #1 was dismissed in its entirety. The Court notes that as this dismissal was based on the statute of limitations, the action could not be revived by the six-month recommencement statute of CPLR 205 (a).

Now, Defendants move to dismiss Action #2, stating it is "an attempt to subvert this Court's authority" by reviving the previously dismissed action. As set forth in personal affidavits from Dr. Lucido and a representative of NYU Langone, the underlying facts of the case remain that Plaintiff's last date of treatment with Dr. Lucido was May 31, 2022.

In opposition, Plaintiff acknowledges the ongoing appeal of Action #1's dismissal, and their simultaneous motion to renew or reargue that dismissal (which has since been denied). Plaintiff submits a personal affidavit from Plaintiff, who readily admits that the podiatric surgeries at issue took place on April 14, 2020 and March 26, 2021, and that her last date of treatment with Dr. Lucido was May 31, 2022. She then discusses her alleged ongoing treatment with nonparty Dr. Raymond Walls, an orthopedic physician, and other providers at NYU Langone. All assertions in her affidavit regarding this treatment are for the purpose of the continuous treatment argument, an argument that this Court has already considered and made its determination on in Action #1, both in the original motion to dismiss and the motion to renew and reargue that was filed contemporaneously with this action.

"The doctrine of collateral estoppel precludes a party from relitigating 'an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point' " (Kaufman v Eli Lilly and Co., 65 NY2d 449, 455 [1985] [internal citations and quotation marks omitted]). "There are now but two requirements which must be satisfied before the doctrine is invoked. First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action. Second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination." (Id.)

Similarly, the doctrine of res judicata bars a plaintiff entirely from reviving an action that has already been dismissed, even if asserting further claims for damages which could have been sought in the first instance. "Under New York's transactional analysis approach to res judicata, once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or seeking a different remedy" (Knott v Gonzales, 2026 NY Slip Op 05015 [2d Dept Aug. 19, 2026], citing O'Brien v City of Syracuse, 54 NY2d 353 [1981]). "Justice requires that every cause be once fairly and impartially tried; but the public tranquility demands that, having been once so tried, all litigation of that question, and between those parties, should be closed forever" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984] [emphasis added]).

As noted by Defendants in their supporting papers, it is well established that collateral estoppel applies to preclude parties from "relitigating the issue" of whether a Complaint failed to state a cause of action and whether the claims were time-barred by the statute of limitations, when those issues were already decided by the court in a "motion to dismiss the complaint in a prior action . . . in which the causes of action were largely identical" (see Westchester County Correction Officers Benev. Ass'n, Inc. v County of Westchester, 65 AD3d 1226, 1227-1228 [2d Dept 2009]).

Here, it is clear that Plaintiff seeks to relitigate an issue which was already determined by the Court, commencing a separate action rather than (or in addition to) filing an appeal of the previous decision and/or the motion to reargue. The issues related to the statute of limitations and continuous treatment doctrine with respect to Dr. Lucido and NYU Langone have been fully decided in Defendants' favor, and Plaintiff had a full and fair opportunity to contest the court's determination in Action #1. The parties are therefore precluded from relitigating this issue based on the same dates, events, and occurrences as the largely identical prior action.

Plaintiff's revision of the Complaint in Action #2 to include the phrase "continuing through at least March 2026" is insufficient to constitute a "new" claim that falls within the statute of limitations, as the patient's own affidavit clearly sets forth the same dates of treatment (August 14, 2020 — March 26, 2021) when the alleged podiatric malpractice by Dr. Lucido and NYU Langone occurred, and her last treatment date by Dr. Lucido on May 31, 2022. The argument that her subsequent treatment by nonparty Dr. Walls and other NYU Langone providers through March 2026 represents a continuous course of treatment was already advanced in Action #1 through Plaintiff's opposition papers to the motion to dismiss and in support of their motion to renew and reargue that decision. This issue was fully litigated and decided. On the principle of collateral estoppel and the substance of the arguments again before this Court, the part of the motion seeking to dismiss all claims against Dr. Lucido, and the vicarious liability claims against NYU Langone on his behalf, must be granted.

Plaintiff argues in opposition that the Action #2 Complaint asserts a new, legally distinct claim against NYU Langone of ongoing "institutional failure to remediate" her injuries, a phrase which has been added to the first cause of action in the Complaint (Paragraph 22). In the attorney affirmation, they state that these claims against the hospital arise from "its own integrated systems, referral practices, treatment protocols, and continuing care after May 31, 2022." However, in all the factual allegations in the record regarding subsequent treatment at NYU Langone, Plaintiff does not allege that nonparty Dr. Walls or any other providers departed from the standard of care. Contrary to Plaintiff's contention, all causes of action from the underlying transactions, events, and occurrences were addressed in the dismissal of their medical malpractice and negligence claims against NYU Langone in Action #1. This Court found those claims arose entirely from the alleged conduct of Dr. Lucido, despite general references to "agents, servants, and/or employees" in the Complaint, and their dismissal precluded identical and meritless claims from being raised in Action #2.

Plaintiff has failed to state a viable cause of action against NYU Langone as an institutional defendant simply by altering a single sentence to reference "ongoing institutional failure" in the refiled Complaint. The Court finds that pursuant to the principles of res judicata and the duplicative facts and allegations underlying the Complaint, Plaintiff's action must be dismissed in its entirety, regardless of a purported new theory of liability against NYU Langone which was not raised in the prior action.

Furthermore, the "new" fourth cause of action against Defendants, res ipsa loquitur, does not represent a distinct claim, but is an evidentiary rule or theory related to the underlying, time-barred allegations of medical malpractice (see Frew v Hosp. of Albert Einstein Coll. of Medicine Div. of Montefiore Hosp. & Med. Ctr., 76 AD2d 826 [2d Dept 1980]). As such, that cause of action is dismissed.

For these reasons, Defendants' motion seeking to dismiss Action #2 is granted, as all causes of action are time-barred, fail to state a cause of action, and are precluded by collateral estoppel and res judicata.

It is hereby:

ORDERED that Defendants' motion (Seq. No. 1) to dismiss this action in its entirety is granted.

This constitutes the decision and order of the Court.

ENTER.

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

Consuelo Mallafre Melendez, J.