Kontos v Tovar

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Kontos v Tovar 2017 NY Slip Op 31674(U) August 9, 2017 Supreme Court, Suffolk County Docket Number: 11-16828 Judge: W. Gerard Asher Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER INDEX No. 11-16828 CAL. No. 16-00610MM SUPREME COURT - STATE OF NEW YORK I.A.S. PART32- SUFFOLKCOUNTY PRESENT: Hon. MOTION DATE 7-26-16 (001) MOTION DATE 9-20-16 (002. 003, 004) ADJ. DATE 1-10-17 Mot. Seq.# 001 - MG # 003 - MG # 002 - MG # 004 - MG W. GERARD ASHER Justice of the Supreme Court --------------------------------------------------------------X EVAN KONTOS An Infant by His Parents and Natural Guardians, KIMBERLY SILVERIO and JAMES KONTOS, and KIMBERLY SILVERIO and JAMES KONTOS, Individually, KRAMER DILLOF LIVINGSTON, ESQS. Attorney for Plaintiffs 217 Broadway New York, New York 10007 Plaintiffs, KELLY RODE & KELLY, ESQS. Attorney for Defendant Tovar - against WINFRED TOVAR, M.D., LAN NA LEE, M.D., SHELLY-ANN JAMES, M.D., J. GERALD QUIRK, M.D., LEIA CARD, M.D., CECILIA AVILA, M.D., PAUL OGBURN, M.D., RANDI TURKEWITZ, M.D., CHANDA REESE, M.D ,, K.INNARI DESAI, M.D., NOREEN DENNEHY, R.N., BRENDA SHYNGLE, R.N., JOSEPH DE CHRISTOFARO, M.D., EUNICE HAGEN, M.D., and SWAT! ALETI-JACOBS, M.D., ' l 1 ~ l ~ l l 1 l 330 Old Country Road, SUite 305 Mineola, New York 11501 ERIC T. SCHNEIDERMAN, ESQ. Attorney General of the State of New York Attorney for Defendants Lee, James, Card, Turkewitz, Reese, Dennehy, Shyngle, Hagen & Aleti 120 Broadway, Rm 26-134 New York, New York 10271 Defendants. --------------------------------------------------------------X Upon the following papers numbered 1 to~ read on these motions for summary judgment ; Notice of Motion/ Order to Show Cause and supporting papers 1-20; 21-43; 44-57; 58-71 ; Notice of Cross Motion and supporting papers_; Answering Affidavits and supporting papers 72-78 ; Replying Affidavits and supporting papers 79-81; 82-83 ; Other_; (and after bearing eot:imel in sttpport and opposed to the rnotion) it is, ORDERED that the motion (#001) by the defendant Joseph DeCristofaro, M.D., the motion (#002) by the defendants Lan Na Lee, M.D., Shelly-Ann James, M.D., Leia Card, M.D., Randi Turkewitz, M.D., Chanda Reese, M.D., Noreen Dennehy, R.N., Brenda Shyngle, R. N., Eunice Hagen, M.D., and Swati [* 2] Kontos v Tovar lndex No. l 1-16828 Page 2 /\lcti-Jacobs, M.D. , the motion (#003) by tJ1e defendants J. Gerald Qui rk, M.D. , and Paul Ogburn, and the motion (#004) by the defendant Cecilia Avila, M.D. , hereby arc consolidated for the purposes of this determination; and it is ORDERED that the motion by the defendant Joseph DeCristofaro. M.D., for an order dismissing the complaint against him is granted; and it is ORDERED that the motion by the defendants Lan Na Lee, M.D. , Shelly-AnnJames, M.D., Leia Card, M.D., Randi Turkcwitz. M.D., Chanda Reese, M.D. , Noreen Dennehy, R.N., Brenda Shynglc, R.N., Eunice Hagen, M.D., and Swati Aleti-Jacobs, M.D. , for an order dismissing the complaint against them is granted; and it is ORDERED that the motion by the defendants J. Gerald Quirk, M.D., and Paul Ogburn, M.O .. for an order dismissing the complaint against them is granted; and it is further ORDERED that the motion by the defendant Cecilia Avila, M.D., for an order dismi ssing the complaint against her is granted. ln December 2008, the plaintiff Kimberly Silverio learned that she wa<> pregnant with the infant plaintiff Evan Kontos. On March 10, 2009, the plaintiff Silverio presented to the Marilyn Shellabarger South Brookhaven Health Center for her first prenatal visit, and fo llowing an examination she was informed that her estimated due date was August 3, 2009. Upon taking Ms. Silverio's medical history, she was noted to be obese, a cigarette smoker, a user of marijuana, and an occasional alcohol user. It also was noted that on August IO, 2007, Ms. Silverio had given birth to a premature female infant, who weighed 5-and-a-half pounds, via a spontaneous vaginal delivery with vacuum assistance delivery at 35 weeks gestalion at Brookhaven Memorial Hospital. During the course of her pregnancy, Ms. Silverio was diagnosed with gestational diabetes, and was advised to fol low a strict diet and to monitor her blood sugar levels. Ms. Silverio also was provided with a logbook and a glucose monitor to check her blood glucose levels on a daily basis. Ms. Silverio rarely produced her logbook and glucose monitor to her doctors during her pregnancy, and, af1er losing the logbook in June 2009, she ceased documenting her blood sugar levels. In addition, Ms. Silverio was required to treat with a nutritionist at the Stony Brook University Cl inic to discuss her eating habits and to monitor her weight throughout her pregnancy. Moreover, on May 29, 2009, Ms. Silverio was transported to Stony Brook University Hospital's emergency department via ambulance after being involved in a motor vehicle accident where she was admitted and monitored overnight. and released after being diagnosed with a urinary tract infection and obesity. Due to her gestational diabetes, the size of the baby was monitored, and during her prenatal visit on May 27, 2009, Ms. Silverio, who was approximately 30 weeks gestation, was informed that her unborn child was "measuring large," and that she would have a "big baby" due to her gestational diabetes. /\t her appointment on June 2 1, 2009, Ms. Silverio was informed that she had gained approximately 28 pounds since her first prenataJ visit and that her blood glucose levels were elevated at 166 milligrams/deciliter ("mg/ctr'). Therefore, Ms. Silverio was informed that it was important for her to follow her diet. as well as monitor her blood glucose levels, because it was a danger to her unborn child if she did not control her [* 3] Kontos v Tovar Index No. 11-16828 Page 3 blood sugar levels. On June 24. 2009, it was recorded in Ms. Silverio's chart that she was morbidly obese due to her excessive caloric intake, that she failed to follow a healthy diet, and that she continued lo disobey doctor's orders. On June 29. 2009, when Ms. Silverio presented for her followup, her blood glucose levels were extremely elevated at 176 mg/di , and she had excessive white carbohydrate intake. Due to Ms. Silverio' s need for oral medication to treat her elevated blood sugar levels and her gestational diabetes diagnosis, her prenatal care was transferred to University J\ssociates Obstetrics & Gynecology. PC., a high risk clinic at Stony Brook University Hospital. when she was approximately 35 weeks gestation. On July, 2, 2009, Ms. Silverio presented to University Associates Obstetrics & Gynecology high risk clinic for her lirst appointment. During that appointment she was prescribed Glyburide to be taken twice per day as a way to try to control her gestational diabetes in light of her gestational age and weight gain, and it was recorded in her medical chart that she failed to present her blood glucose logbook at her visit. A sonogram performed by a nurse practitioner that same day revealed an amniotic fluid index ('·AFT'') of22.7 cm, which was above the normal limit, and it was noted that the increased amniotic fluid levels were baseline for hydronephrosis ofthe fetus. On July 6, 2009, Ms. Silverio underwent blood sugar testing, a urinalysis, and a biophysical profile via ultrasound to assess the baby's health. Dr. Cecilia Avila, an obstclrician-gyneeologist, interpreted the ultrasound, which showed that the fetus was developing normally for its gestational age. and a plan for weekly antepartum testing was developed for Ms. Silverio. On July 14. 2009, Ms. Silverio had a followup appointment where her blood sugar was noted to have ''fair control," and her biophysical profile, which was inlcrpretcd by Dr. Paul Ogburn, an obstctriciangynecologist, showed a nonnal biophysical profile and a normal amniotic fluid index. Ms. Silverio also was seen by Or. J. Gerald Quirk, a maternal-fetal specialist, and a plan was developed for Ms. Silverio to return within one week. On July 21, 2009, Ms. Silverio had a further biophysical profile, which was normal, as was her amniotic fluid index, according to Dr. Avila. Dr. Quirk, who also saw Ms. Silverio, noted that her blood sugars were "mostly controlled," scheduled her for an induction of labor with an anticipated vaginal delivery for the following week. On July 26, 2009, Ms. Silverio, who was approximately 39 weeks pregnant, was admitted into the antepartum unit at Stony Brook University Hospital for a schedule induction oflabor due to her gestational diabetes. Upon admittance, Dr. Randi Turkewitz, a third-year resident, took Ms. Silverio· s medical history and performed a physical, which included the taking of her vital signs. Testing showed her blood glucose level was 72, and the fetal heart rate was 130 beats per minutes ("bpm") with moderate variability and the presence of accelerations. In addition, the fetal weight was determined by Leopold maneuver to be approximately seven pounds, five ounces, and an ultrasound demonstrated a live fetus in a cephalic lie, i.e., a head-first presentation. /\. plan to initiate the medication Ccrvidi I for " cervical ripening" purposes was formulated by Dr. Kinnari Desi, the attending physician, and Dr. Turkewitz. At approximately 7:00 p.m., Dr. Chanda Reese, a second-year resident, placed the Cervidil insertion, which was removed at approximately 9:30 p.m. After removal of the Cervidial vaginal insert, Ms. Silverio was transported to the labor and delivery unit, and Pitocin augmentation was initiated at two milliunits per minute at I 0:26 p.m. [* 4] Kontos v Tovar f ndex No. 11-16828 Page 4 per protocol. At approximately 12:00 a.m., artificial rupture of the membranes was performed after an unchanged vaginal examination, and the Pitocin was continued. On July 27, 2009, by l :00 a.m., Ms. Silverio began having contractions every five minutes. She declined an epidural anesthetic; instead. Stadol and Phenergan were administered at approximately 1:45 a.m. for pain relief. An internal uterine pressure catheter was inserted to measure the strength of Ms. Silverio's contractions, and the observed elevated blood pressure levels were considered to be a result of her labor pains. By 3:00 a.m., Ms. Silverio's labor had progressed to 5cm dilated, and the fetal heart rate was assessed by Dr. Reese to be a category 1, normal. After a finger prick blood glucose test showed Ms. Silvcrio's glucose level to be 14 I, two units of regular insulin were administered to her by Nurse Brenda Shyngle, who was her primary nurse from 9:00 p.m. on July 26 through the night into July 27. At approximately 4:00 a.m., Ms. Silverio's labor had progressed to 8cm with the fetal head at 0 station, and Dr. Shelly-Ann James, a fourth-year resident, noted "reassuring" fetal heart patterns. At approximately 5:45 a.m., Ms. Silverio was fully dilated with the fetal head at 0 station. Dr. Reese and Dr. Desai devised a plan of care to treat Ms. Silverio with an epidural to allow her to ''labor down," descent of the fetal head into the vaginal canal, and then to proceed with an operative vagina I deli very with either vacuum or forceps assistance due to Ms. Silverio· s exhaustion and ineffective pushing. An internal scalp electrode (""lSE'') was placed at approximately 5:24 a.m. to further monitor the fetal heart rate, and it was noted that the fetal position was left occiput posterior with contractions every four minutes. In addition, Dr. Desai noted that the fetal heart rate was in the" l 50s with moderate variability and decelerations to the 90s 1-2 minutes then return to baseline," that Ms. Silverio's previous delivery was with vacuum assistance, and that the plan of care was to resume pushing after the epidural was placed. At approximately 6:00 a.m., anesthesiology was notified and an epidural was placed, and fetal tracing improved without expulsive efforts. Pitocin was discontinued at approximately 6:25 a.m., and by 6:36 a.m., Ms. Silverio again was pushing with contractions. At approximately 7:00 a.m., the nursing and medical staff changed shifts, and at about 7:50 a.m., Dr. Winifred Tovar, the attending physician, noted the fetal heart rate and station, which was significant for a persistent decrease to about 90 beats per minute shortly before delivery, and that Ms. Silverio had been counseled on the risks, benefits, and alternatives to a primary cesarean section versus an operative delivery. Dr. Tovar aJso noted that she chose to have an operative vaginal delivery with low forceps application. Neonatal Intensive Care Unit ("NICU") staffwas called to be present for the operative vaginal delivery, because offotal bradycardia and maternal exhaustion. Nurse Noreen Dennehy, the primary nurse. wrote in the delivery note that "the patient had no complaints of pain and was unable to feel contractions. an external monitor was placed on the patient's abdomen for monitoring contractions, Iand thatj the NICU team was at the bedside to prep for delivery." Furthermore, the operative note dictated by Dr. r,an Na Lee. a frrnrth-year resident, states that "she arrived at the delivery room to prepare for a forceps delivery. that Dr. Tovar already was present, that her·examination confirmed Dr. Tovar's assessment of the fetus, that at 8:0 I a.m. forceps were applied to the fetal vertex, which was in the Occiput Posterior position, the head facing up, that after delivering the shoulders, a body cord was appreciated, and that at 8: 17 a.m. a live male infant was delivered." Dr. Lee further noted that the infant was handed off to the awaiting neonatal team. [* 5] Kontos v Tovar Index No. I l-16828 Page 5 FoJlowing the delivery of the infant plaintiff Evan Kontos, Dr. Tovar escorted Ms. Silverio to the operating room to repair a second degree pcrianal laceration and right sulcus tear, without complications. and at approximately l 1:30 a.m., Ms. Silverio was lransported to the postpartum unit after stopping in the NICU to see her son. On July 29, 2009, Ms. Silverio was discharged home from Stony Brook University Hospital. Dr. Leia Card, a second-year resident, in the discharge summary noted that the mother was discharged home with no postoperative complications, that Ms. Silverio's blood sugar levels were within normal limits, and that she no longer required oral medication for her gestational diabetes. Dr. Card also informed Ms. Silverio to fo llowup for a postpartum visit in six weeks. Following the birth of the infant plaintiff, Dr. Ew1ice l Iagen, a first-year pediatric resident who was on the assembled NICU team and was present for the birth of the infant plaintift: wrote the birth report, which states that "the 7 pound, 12 ounce infant male was delivered without respiratory effort, was cyanotic and had poor tone." Dr. Tovar also documented that the infant had suffered an hypoxic event as a result of compression of the nuchal cord found around the shoulder and body at the time of delivery, and that the NTCU team supplied oxygen to the infant plaintiff via applied positive pressure ventilation ("PPV") while attempting to intubate the newborn for several minutes. The infant plaintiffs documented APGAR score at one, five, and ten minutes were one, four and seven. The report also documented that the infant had suffered cephalic edema and brnising to his leH eyelid, and that he was transferred to the NJCU. A head computerized tomography ("CT") scan was performed immediately on the infant plaintiff, because neonatal respiratory depression and seizure activity, as well as rapid eye movement, were observed. The head CT scan revealed subdural hemorrhage, which prompted the initiation of head cooling therapy by Dr. DeCristofaro, a pediatric neonatologist, approximately three-and-a-half hours after birth, which continued for 72 hours after birth. Antibiotic treatment also was begun and lasted for approximately one week. ln addition, the blood work that was performed on the infant plaintiff showed that he had acidosis al the time of birth. Afterwards, the infant plaintiffs care was overseen by the pediatric neurology stafC who documented that the infant plaintiff had suffered hypoxic ischemic encephalophy, that his seizures subsided early, resulting in the discontinuance ofthe seizure medication, and that overall the infant plaintiffdid we! I during his hospital stay. The day after the birth of the infant plaintiff, the plaintiffs Silverio and Kontos requested a meeting to understand why their son was in the NICO. Present at the meeting was Dr. Tovar, Dr. Desai, Dr. DeCristofaro, and Dr. Swati Aleti-Jacobs, a pediatric neonatal fellow. The doctors explained that the use of the forceps during the delivery had been correctly indicated and performed, that the fetus had descended with ease down the birth canal, and that the outcome their infant had suffered was not generally associated with forceps deliveries. The doctors fmther explained that the hypoxic event that the infant plaintiff experienced most likely was due to the umbilical cord being wrapped, multiple times, around the infant's shoulders and abdomen, and being compressed by the vagina) walls during the infant' s descent through the vaginal canal, which impeded the normal flow of oxygenated blood to the fetus during labor. Dr. Tovar and Dr. Desai further explained that prior to informing the parents on the acuity of the infant's distress in ndication, in their judgment, for a primary the birth canal at approximately 7:00 a.m., there had been no E cesarian section, since the fetal heart rate was a category II, only warranting close observation. [* 6] Kontos v Tovar Tndcx No. 11-16828 Page 6 On August 7, 2009, the infant plaintiff was discharged from the hospital with instruction to followup with neurology, physical therapy, and early intervention. The discharge summary stated that the infant plaintiff had been diagnosed with, among other things, hypox ic-ischemic encephalopathy, subarachnoid hemorrhage, septicemia, late metabolic acidosis, and fac ial nerve injury due to birth trauma. The infant plaintiff after his discharge had outpatient physical examinations with Stony Brook University Hospital neurologists o n September 3, 2009, September 9, 2009, and March 25, 20 10, which were all normal exami nations. Ms. Silverio reported to the doctors that everything was going well, that there were no seizures, infections or fevers, and that an evaluation for early intervention services found the infant plaintiff did not qualify, since he was able to bring his hands to midline, smile spontaneously and lift his head 45 degrees. At the infant plaintiff's last visit lo Stony Brook University Hospital neurologists, his mother informed the doctors that the family was moving to upstate New York, and the doctors encouraged her to followup with a ne urologist in approximately six months. Thereafter, the plaintiffs Kimberly Silverio and James Kontos commenced this action on behalf of themselves, individually, and their son, the infant plaintiff Evan Kontos, against defendants Dr. Tovar, Dr. Lee, Dr. James, Dr. Quirk, Dr. Card , Dr. Cecilia /\vi ta, Or. Paul Ogburn, Dr. Randi Turkewitz, Dr. Reese, Dr. Desai, Nurse Dennehy, N urse Shyngle, Dr. DcCristofaro, Dr. Hagen, and Dr. Aleti-Jacobs to rt!covcr damages for medical malpractice. The gravamen of the complaint is the defendants were negligent in the obstetric care rendered to the plaintiff Silverio and the pediatric neonatal care rendered to the infant plainti ff, and that the defendants were negligent in the care and treatment rendered to the infant plaintiff post de! ivcry. The plaintiffs, by their bill of particulars, allege, among other things, that the infant plaintiff suffered numerous personal injuries as a result of the defendants' negl igence, including brain damage ; hypoxic-ischemic encephalopathy; cephalic edema; seizure activity; motor, cognitive, and developmental delays; and severe shock lo the nervous system. Dr. DeCristofaro now moves for summary judgment o n the basis that he did not depart from accepted standards of medical care in his treatment of the infant plaintiff, and that the care rendered to the infant plaintiff did not proximately cause his alleged injuries. Specifically, Dr. DeCristofaro argues that the infant plaintiff's alleged injuries stem from Ms. Silverio's failure to follow her obstetrician's orders to stop smoking and to control her gestational diabetes while she was pregnant with him, and that the brain cooling procedure he performed on the infant plaintiff was medically necessary and within the requisite standard o f care. In support of the motion, Dr. DeCristofaro submits copies of the pleadings, the parties' depositions transcripts, uncertified copies of Ms. Silvcrio's medical records, and the affirmations of his experts, Dr. Andrew Steele and Dr. N icholas Roussis. Ors. Lee. James. Card, Turkewitz,, Reese, Hagen, and Alcti-Jacobs, and Nurses Dennehy and Shyngle (hereinafter collectively referred to as the " Stony Brook University Hospital defendants") move for summary judgment in their favor. arguing that the plaintiffs and the infant plaintiff are unable to establish a prima facie case that they departed from accepted standards of medical care in their treatment of the plaintiff Si lverio and the infant plaintiff, or that their treatment proximately caused the inj uries sustained by the infant plaintiff. In particular, Drs. Card, Turkewilz. Reese. l lagen and Aleti-Jacobs argue that they arc entitled to summary judgment on the basis that as resident physicians and fellow physicians they did not make any independent medical decisions regarding the treatment and care of the plaintiff' [* 7] Kontos v Tovar Index No. 11-16828 Page 7 Silverio or the infant plainitff, and that they were not required to intervene, because their supervising physicians' treatment plans were appropriate and within accepted medical practice. Nurses Dennehy and Shyngle assert that they were not negligent in managing the obstetrical care of Ms. Silverio. In support of the motion, the Stony Brook University Hospital defendants submit copies of the pleadings, the parties' deposition transcripts, certified copies of Ms. Silverio's and infant plaintitrs medical records, and the affirmations or their experts. Dr. Marc Engelbert and Dr. Howard Heiman. Drs. Quirk and Ogburn also move for summary judgment on the basis that they did not depart from acceptable standards of medical care in their treatment of Ms. Silverio, and that the care they rendered to her did not proximately cause her alleged injuries. Jn particular, Drs. Quirk and Ogburn assert that they were not negligent in failing to plan for a cesarean section to deliver the infant plaintiff: since the plaintiff Silverio previously had a vacuum assisted vaginal delivery, and that they were not involved in the monitoring of the plaintiff Silverio's labor or the delivery of the infant plaintiff. In support of the motion, Ors. Quirk and Ogburn submit copies of the pleadings, the parties' deposition transcripts. uncenilied copies of the plaintiffs· medical records. and the affirmation of their expert, Dr. Daniel Skupski Lastly, Dr. Avila moves for summary judgment on the basis that the care and treatment she provided to Ms. Silverio did not depart from acceptable standards of medical care, and that the care and treatment she rendered to her did not proximately cause the infant plaintifrs alleged injuries. Particularly, Dr. Avila argues that she only treated Ms. Silverio on two occasions, and that she was not involved in Ms. Si I verio' s prenatal care and did not make any recommendations in regards to the management of said care or formulate the labor and delivery plan. In support of the motion, Dr. J\ vi la submits copies of the pleadings, uncertified copies of the plaintiffs medical records, her own affidavit, and the affirmation of her expert. Dr. Adiel Fleischer. The plaintiffs do not oppose the motions made by the Stony Brook defendants or Dr. /\vita. The plaintiffs also do not oppose the application for summary judgment in favor of Drs. Quirk and Ogburn. However, the plaintiffs do oppose the branch of the motion by the Stony Brook defendants seeking summary judgment in favo r of Dr. Aleti -Jacobs on the grounds that there are triable issues of fact as to whether Dr. Aleti -Jacobs made independent treatment decisions regarding the care of the infant plaintiff. and whether such treatment decisions deviated from the applicable medical standard of care and were a proximate cause of the infant plaintiff's alleged injuries. The plaintiffs also oppose Dr. DeCristofaro's motion for summary judgment on the grounds that there are material issues of fact as to whether Dr. DeCristofaro deviated from acceptable standards of medical care when renderi ng treatment to the infant plaintiff, and whether such deviations were the proximate cause of the infant plaintiff's al leged injuries. In opposition to the motion. the plaintiffs submits the redacted and unsigned affidav it of their expert. the certified medical records of the plaintiff Silverio and the infant plaintiff, and Dr. Aleti-Jacobs' deposition transcript. To make a prima facie showing of entitlement to summary judgment in an action to recover damages for medical malpractice, a defendant physician must establish through medical records and competent expert affidavits that he or she did not deviate or depart from accepted medical practice in the treatment of the plaintiff or that he or she was not the proximate cause of plaintifrs injuries (see Castro [* 8] Kontos v Tovar Index No. 11-16828 Page 8 v New York City Health & Hosps. Corp., 74 J\03d I 005, 903 NYS2d 152 l2d Dept 2010): Deutsch v Clwglassia11, 71 AD3d 718, 896 NYS2d 431 (2d Dept 2010]; Plato v Gw ieratne, 54 A03d 741, 863 NYS2d 726 [2d Dept 2008]; Jo11es v Ricciardelli, 40 J\D3d 935, 836 NYS2d 879 [2d Dept2007]; Mendez v City of New York. 295 A02d 487, 744 NYS2d 847 [2d Dept 20021). To satisfy this burden, the detendant must present expert opinion testimony that is supported by facts in the record and addresses the essential allegations in the bill of particulars (see Roques v Noble, 73 AD3d 204, 899 NYS2d 193 r l st Dept 201 O]; Wart! v E11gel, 33 AD3d 790, 822 NYS2d 608 [2d Dept 2006)). Conclusory statements that do not address the allegations in the pleadings arc insufficient to establish entitlement to summary judgment (see Garbowski v Hudson Val. Hosp. Ctr. , 85 AD3d 724, 924 NYS2d [2d Dept 201 lJ). A physician owes a duty of reasonable care to his or her patients and will generally be insulated from liability where there is evidence that he or she conformed to the acceptable standard of care and practice (see Spe11sieri v Lasky, 94 NY2d 23 I , 70 l NYS2d 689 L1999); Barrett v Hudson Valley Cardiovt1Scular Assoc., P.C., 9 1 AD3d 691, 936 NYS2d 30412d Dept 2012]; Ge/fner v North S hore U11iv. Hosp. , 57 AD3d 839. 871 NYS2d 617 [2d Dept 2008]). A doctor is not a guarantor of a correct diagnosis or a successful treatment, nor is a doctor liable for a mere error in judgment if he or she has considered the patient's best interest after careful evaluation (see Nestorowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 l2002J; Oelsner vStateo/New York, 66NY2d 636,495 NYS2d 359 [19851; BernardvBlock. 176 AD2d 843, 575 NYS2d 506 r2d Dept 1991]). Failure to demonstrate a prima facie case requires denial of the summary judgment motion. regardless of the sufficiency of the opposing papers (see A lvarez v Prospect Hosp. , 68 NY2d 320, 5088 NYS2d 923 [1986]). Once the defendant makes a prima facie showing, the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of triable issues of fact which require a trial of the action (seeAlvMez v Prospect Hosp., supra; Kelley v Ki11gsbrook Jewis h Med. Ctr., I 00 J\D3d 600, 953 NYS2d 276 (2d Dept 2012]; Fiorentino v TEC Holdings, LLC, 78 AD3d 91 l NYS2d 146 Pd Dept 20 I 0)). Specifically, in a medical malpractice action, a plaintiff opposing a motion for summary judgment need only raise a triable issue of fact w ith respect to the element of the cause of action or theory of nonliability that is the subject of the moving party's pri ma facie showing (see Bhim v Dourmashkin, 123 A03d 862, 999 NYS2d 471 r2d Dept 2014]; Hayden v Gordo11 , 9 1 AD3d819, 937 NYS2d 299 (2d Dept 20121; Stukas v Streiter. 83 AD3d 18, 9 18 NYS2d 176 f2d Dept 201 1]; Sc!1icl111um v Yasmer, 74 AD3d 1316, 904 NYS2d 218 [2d Dept 201O]). Upon review ofthe affirmations ofDr. DeCristofaro's experts, Dr. Andrew Steele and Dr. Nicholas Roussis, and the additional exhibits submitted in support of the motion, the Court finds that Dr. OeCristofaro has establ ishcd, as a matter oflaw, that he did not deviate from good and acceptable medical practice in rendering care to the infant plaintiff, and that the treatment provided by him was not the proximate cause of the alleged injuries sustained by the infant plaintiff (see Omane v Sambaziotis. 150 AD3<l 1126, 55 NYS3d 345 [2d Dept 2017]; Gattli11g v S i<tters of Charity Med. Ctr., 150 J\D3d 701, 53 NYS3<l 665 [2d Dept 2017 J). Dr. Steele states that he is board certified in pediatrics and neonatal-perinatal medicine, and licensed to practice medicine in the State of New York. Dr. Steele states that in his opinion. within a reasonable degree of medical certainty, Dr. DeCristofaro, at all times, acted within the appropriate standard of care in providing care and treatment to the infant plaintiff, and that no act or omission on Dr. DeCristofaro's behalf contributed or proximately caused the infant plaintifPs injuries. Or. Steele states [* 9] Kontos v Tovar Index No. 11-16828 Page 9 that the presence of a significant metabolic acidosis with a pH level of 7 .08 and base deficit of-13. as well as the bradycardia identified at birth, indicated that the infant plaintiff had suffered an acute, complete um bi 1 cord compression with onset shortly before de! ivery, and that the presence ofcompressed sl it-l ikc ical ventricles on the head ultrasound and CT scan, along with the abnormal laboratory lest results, were indicative of liver and kidney injuries due to an hypoxic-ischemic event that occurred 24 hours or more prior to delivery. Tn add ition, Dr. Steele states that upon arrival in the NICU the infant plaintiff was diagnosed with hypoxic-ischcmic encephalopathy ("IHE"), Stage 11 Sarnat and CFM moderate abnormality. and that, in light of evidence of an acute hypoxic-ischcmic event causing and/or contributing to his abnormal ncurologic stale, Dr. DcCristofaro correctly evaluated the infant plaintiff for possible therapeutic hypothermia, and appropriately initiated the head coo Iing protocol within six hours of the in fant plainti ff s birth, which continued for approximately 72 hours. Dr. Steele states, within a reasonable degree or medical certainty, that Dr. DcCristofaro correctly detennined that the infant plaintiff met the criteria for cool cap therapy, as he exhibited continued need for resuscitation, moderate to severe encephalopathy with hypotonia, clinical seizures, and he was less than six hours old. He states that Dr. DeCristofaro also appropriately treated the infant plaintiff with phenobarbital for seizures, mechanical venti lation for six days, and antibiotics for seven days to prevent any infection. Dr. Steele states that it is his opinion, within a reasonable degree of medical certainty, that Dr. Cristofaro' s actions in initiating brain cooling therapy potentially mitigated the injuries to the infant plaintiff. Lastly, Dr. Steele states that in his opinion, within a reasonable degree of medical certainty, Dr. DeCristofaro responded appropriately to a.ll of the medical problems presented by the infant plaintiff, and that the records clearly indicate that the infant plaintiff suffered some form o f trauma and/or was injured prior to delivery. Furthermore, Dr. Roussis, who is a licensed physician practicing obstetrics and gynecology, states, within a reasonable degree of medical certainty, that the injuries experienced by the infant plaintiff occurred before Or. DeCristofaro began treating the infant plaintiff, and that Ms. Silverio 's failure to properly care for her gestational diabetes, as well as her smoking cigarettes and marijuana use, contributed to the mental and physical injuries sustained by the infant plaintiff. Dr. Roussis explains that Ms. Si lverio's gestational diabetes may have affected the infant plaintiff's kidney formation, that the plaintiff Silverio at her pre-natal appointment on July 2, 2009 was baseline hydronephrosis, which can lead to abnormalities in the amount of amniotic fluid and can impair fetal lung development, and that the most common complication associated with gestational diabetes is macrosomia, aka big baby syndrome, which occurred in this situation. Or. Roussis states that macrosomia can lead to abnormally low blood sugar levels, which can result in seizures; that gestational diabetes can result in a fetus having an increased chance of respiratory distress syndrome, because the lungs take longer to mature when the mother has gestational diabetes; and that respiratory distress syndrome impacts the amount of oxygen flow to the brain. which also can cause seizures when the oxygen level is too low. Dr. Roussis states, within a reasonable degree of med ical certainty, that a pH level of 7.0 and below is considered acidic~ that when a baby is born with high acidity in his or her umbilical cord, the baby is at a greater risk for cerebral palsy, brain damage and infant death; and that if during the delivery the baby does not receive adequate oxygen, it 's umbilical cord pl I level declines, resulting in a host of issues that can cause brain damage. Dr. Roussis states that the umbilical cord pl I level at the time of the infant plaintiffs birth was 7 .08, that an ideal normal pl l lcvcl is between 7.25 to 7.35, and that the low plI level can help to explain why the infant plaintiff had such complications after his birth. Dr. Roussis further states that in his opinion, within a reasonable degree of [* 10] Kontos v Tovar Index No. I l-16828 Page 10 medical certainty, Dr. DeCristofaro did not deparl from accepted standards of medical care, that Dr. DeCristofaro's actions did not proximately cause or contribute to the infant plaintiff's injuries, and that the hospital records indicate that the infant plaintiff suffered from a trauma or injury that occurred prior lo the delivery. In addition, the Stony Brook University Hospital defendants have made a prima facie showing entitling them to judgment as a matter oflaw by demonstrating that they were either residents or fellows under the supervision ofan attending physician at al I times during the p lai nti ff Si Ivcrio' s labor and delivery of the infant plaintiff, and the infant plaintiffs subsequent hospitalization in the NICU (see Qui/le v New York City Health & llosp. Corp. ,_ AD3d _ , 2017NY Slip Op 05863 f2d Dept 2017];Nasima vDolen, 149 AD3d 759. 5 I NYS3d 189 [2d Dept 2017]; Leavy v Merriam , 133 AD3d 636, 20 NYS3d I I 7 r2d Dept 201 1]; Poter v Adams, I 04 /\D3d 925, 961 N YS2d 556 [2d Dept 2013 )). When supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene (Bellafiore v Ricotta, 83 AD3d 632. 633, 920 NYS2d 373 12d Dept 2011]; see Crawford v Sorkin. 41 AD3d 278, 839 NYS2d 40 llst Dept 20071; Soto v Andaz. 8 AD3d 470, 779 NYS2d I 04 (2d Dept 20041). The Stony Brook Universily I fospital defendants proffered evidence showing that they implemented treatment plans created by their attending physicians that were not '"so clearly contraindicated by normal practice that ordinary prudence requircf dJ inquiry into these plans' ' correctness'" (Costello v Kirma11i, 54 AD3d 656, 657, 863 NYS2d 26212d Dept 2008], quoting Cook v Reisner, 295 J\D2d 466, 467, 744 NYS2d 426 [2d Dept 2002]: se~ Bellafiore v Ricotta. supra; MulliZ v Katlowitz, 49 AD3d 511. 856 NYS2d 120 Pd Dept 2008]; Velez v Goldenberg, 29 AD3d 780. 815 NYS2d 205 f2d Dept 2006]; Rosei11grave v Massapequa Gen. Hosp., 298 /\D2d 377, 751 NYS2d 2 I 8 [2d Dept 2002]; c;f Pearce v Klein, 293 AD2d 593. 74 I NYS2d 89 f2d Dept 20021). furthermore, Dr. Marc Engelbert, who is board certified in obstelrics and gynecology. and Dr. Howard Heiman, who is board certified in pediatrics and neonatal-perinatal medicine, each state in his affirmation that in his opinion, within a reasonable degree of medical certainty, the Stony Brook University Hospital defondants. while working under the supervision and direction of auending physicians, provided good and proper medical care to the plaintiff Silverio and the infant plaintiff, and that none of the named physicians or nurses made any independent decisions concerning the plaintiff Silverio's or the infant plaintilrs medical care that resulted in the alleged injuries (see Elmes v Yelon, 140 /\D3d l009, 34 NYS2d 470 12d Dept 20161; Guctas v Pessolano, 132 A03d 632, 17 NYS3d 749 (2d Dept 2015]). Likewise. Dr. Quirk and Dr. Ogburn have established their prima fac ie enlitlement to judgment as a matter of law by submitting an affirmation from Dr. Daniel Skupski, which demonstrated that lhe care and treatment rendered to Ms. Silverio did not deviate or depart from good and acceptable medical care, and that their treatment of the plaintiff Silverio was not the proximate cause of her alleged injury or the alleged injuries of the infant plaintiff (see Maki11e11 v Torelli, 106 AD3d 782, 965 NYS2d 529 [2d Dept 2 103]; Poter v Adams, 104 AD3d 925, 961 NYS2d 556 (2d Dept 20 13 1 Barrett v Hudson Val. ; Cardiovascular Assoc., P.C. , 91 AD3d 691, 936 NYS2d 304 [2d Dept 20121). Dr. Skupski, who is a board certified obstetrician and gynecologist with a subspccialty in maternal-fetal medicine. states, within a reasonable degree of medical certainty, that the treatment rendered to the plaintiff Silverio by Dr. Quirk and Dr. Ogburn on July 14, 2009 was, at all times, within good and acceptable standards of medical care. [* 11] Kontos v Tovar Index No. 11-1 6828 Page 11 thal there were no departures fro m accepted standards of medica l care, and that their treatment did not proximately cause or contribute to the plaintiff's or the infant plainti ff's injuries (see Trcmrillg v Ge11dal. 121 A03d l 097, 995 NYS2d 182 [2d Dept 2014]; Olg1m v Cipolla, 82 AD3d l l 86, 920 NYS2d 175 [2d Dept 20 11]; Rebozo v Wilen , 41AD3d457, 838 NYS2d 121 [2d Dept 2007]). Dr. Skupski states that it was appropriate and well within the standard of care when Dr. Quirk planned for an induction and trial of labor when he last treated Ms. Silverio on July 2 l , 2009. Dr. Skupski explains that in 2009 obstetricians and maternal fetal medicine practitioners d id not fo llow the concept of pelvimetry, which requires the obstetrician to try to ascertain whether the maternal pelvic anato my is adequate for a vaginal delivery. Rather, he states that obstetricians fo llowed the concept of"a previously tested and successful pelvis is a normal pe lvis~ thus, if a woman had a previous successful vagina l delivery, and the baby's head is in the cephalic presentation, then the standard of care required that a trial ofa labor be attempted." Dr. Skupski further explained that with a prior vaginal delivery, the pelvis is considered ..gynecoid" for purposes of attempting a vaginal delivery for a new pregnancy, and that, since the plaintiff Silverio previously deli vered vaginally with vacuum assistance. and the baby was in the cephalic presentation, it was entirely appropriate fo r Dr. Quirk to plan fo r an induction . However, the standard of care did not require Dr. Quirk to anticipate that Ms. Silverio would have a difficult delivery, based on her obstetrical history, o r to plan a cesarean section. Furthermore, Dr. Skupski states that, based on the fact that the plainti ff Silverio's biophysical profile and amniotic fluid level were normal, and her blood sugar level was controlled on the last date o r treatment with Dr. Quirk, the standard of care req uired him to recommend an induction and vaginal delivery; therefore, Dr. Quirk did not depart from the standard of care in not planning fo r a cesarean section. Dr, Skupsi rurther states that Dr. Quirk's failure to plan fo r a cesarean section was not a proximate cause of or a substantial factor in the injuries suffered by either Ms. Silverio or the infant plai nti ff: because the doctors at Stony Brook University Hospital were capable of performing a cesarean section if the need fo r one became necessary. In addition. Dr. Skupsi states that Or. Ogburn did not deviate from the accepted standard ofmedical care, and did not proximately cause the alleged injuries to the plaintiff Silverio or the in fant plainitff, since bis one and on ly interaction with the plaintiff Silverio was when he interpreted the biophysical profile performed on July 14, 2009, which confirmed fetal well-being. Dr. Skupski states that Dr. Ogburn appropriately interpreted the bio physica l profile as normal, that the amniotic fluid level was normal, and that the standard of care did not require him to seek any additional testing or assessments of the fetus at the time. Lastly, Dr. Skupsi states that as Dr. Ogburn was not involved in the planning or management of the plaintiff Silverio's labor and delivery, there is no connection between Dr. Ogburn 's interpretation of the biophysical profile on July 14, 2009 and Ms. Silverio's or the infant plaintiff's injuries. since his treatment and care or the plaintiff Silverio began and ended on that date. Similarly, Dr. Avila has established her prima facie burden of entitlement to judgment as a matter oflaw by proffering the deposition testimonies of the plainti ffs Silverio and Kontos, and by submitt ing her own affidavit and the affirmation of Dr. Adiel Fleischer, in which he opined that the care and treatment rendered to Ms. Silverio by Dr. Avila did not deviate or depart from good and acceptable standards of medical care. and that her treatment of the plaintiff Silverio was not the proximate cause of any injuries she allegedly sustained o r the infant plaintiff (see Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612 l2d Dept 20121 ; Belak-Red/ v Bollengier, 74 A03d 1110, 903 NYS2d 508 [2d Dept 20101: Ellis v E11g, [* 12] Kontos v Tovar Index No. 11-16828 Page 12 70 AD3d 887, 895 NYS2d 462 (2d Dept 2010]; Adjetey v New York City Health & llosps. Corp.. 63 AD3d 865. 881 NYS2d 472 [2d Dept 2009]; Tuorto v Jadali, 62 AD3d 784, 878 NYS2d 457 (2d Dept 20091). Or. Fleischer, who is board certified in fetal medicine and maternal medicine, and the chairman or the Department of Obstetrics/Gynecology at North Shore University Hospital/Long Island Jewish Medical Center, states it is his opinion, to a reasonable degree of medical certainty, that the care and treatment rendered by Dr. Avila to Ms. Silverio was in all respects reasonable and did not depart from good and accepted standards of medical practice. Dr. Fleischer states that it is his opinion nothing Dr. A vi la did, or did not do, with regards to the care and treatment of Ms. Silverio caused or contributed in any way to any of her alleged injuries or those of the infant plaintiff. Dr. Fleischer states that Dr. Avila's role in Ms. Silverio 's prenalal care and treatment was to perform the biophysical profiles and report the findings, and that she did not have any further involvement in Ms. Silverio's care and treatment, since the findings never suggested an emergent condition requiring immediate intervention. Or. Fleischer explains that a biophysical profile is a prenatal test performed to check on fetal well-being, and combines fetal heart rate monitoring, a non-stress test, and fetal ultrasound, and that during the test the baby's heart rate, breathing, movements, muscle tone, and amniotic fluid level are evaluated and given a score. Dr. Fleischer states that due to the plaintiff Silverio's history of gestational diabetes, there was an indication for the performance of biophysical profiles to monitor the fetus ' growth. Dr. Fleischer states that Dr. Avila's interpretations of the biophysical profiles performed on July 6, 2009, and July 21 , 2009, both of which bad a the fetal score of eight. were accurate and confirmed the well-being of the infant plaintiff. Dr. Fleischer further stales that Dr. Avila·s interpretations and findings of the two biophysical profiles that she performed on the plaintiff Silverio were unrelated to the events that occurred during Ms. Silverio' s labor and delivery or the infant plaintiffs condition. Furthermorc, Dr. Fleischer states that the thirteen images taken by Dr. A vi la during the biophysica I on July 6, 2009 did not indicate any need or immediate intervention, and that the images and measw-ements were consistent with what was written in the report prepared by Dr. Avila. Dr. Fleischer explains that the measurements obtained during the ultrasound were proper for evaluating fetal growth and well-being, and that they were used to calculate gestational age, which is based upon bipareteal diameter, head circumference, femur length, and abdominal circumference. Dr. Fleischer states that Dr. Avila correctly interpreted and confirmed fetal well-being, that the finding of the evaluation did not cause any harm or injury to Ms. Silverio or the infant plaintiff, and that there wa" no indication that the fetus was in distress or that immediate intervention was necessary. Dr. Fleischer states that on July 21, 2009, Dr. A vi la. once again, accurately interpreted the biophysical profile as being completely normal, without any fetal distress requiring immediate intervention, and confirmed feta l well-being. Additionally, Dr. Fleischer states that since Dr. A vii a was not involved in the labor and delivery, it is his opinion, within a reasonable degree of medical certainty, that the position of the fetus during the biophysical profiles on July 6, 2009 and July 21. 2009 were not relevant, since the fetal position on those days arc not indicative of the fetal position at the time of delivery, because the fetus will rotate positions throughout the final weeks of pregnancy. even al the time of birth. As mentioned above, the plaintiffs do not oppose the motions made by the Stony Brook University l lospital defendants or by Dr. Avila, nor do the plaintiffs oppose the application for summary judgment in favor of Or. Quirk and Dr. Ogburn. Therefore, the plaintiffc; failed to raise a triable issue of fact as lo [* 13] Kontos v Tovar Index No. 11-16828 Page 13 whether these doctors deviated from the applicable standard of care in their treatment of the plaintiff Silverio and the infant plaintiff. and whether such deviation was a proximate cause ofthcir alleged injuries (see Moore v St. Luke 's Roosevelt Hosp. Ctr., 60 AD3d 828, 874 NYS2d 389 (2d Dept 2009): see also Groeger v Col-Les Ortlwpedic Assoc., P.C., 149 AD2d 973, 540 NYS2d 109 !,4th Dept 19891). In addition, the plaintiffs failed to raise a triable issue of fact in opposition to Dr. DcCristofaro 's and Dr. Alcti-Jacobs" prima facie showings that they did not depart from acceptable standard of medical care in the treatment they rendered to the infant plaintiff, and that their treatment was not a proximate cause of the infant plaintiffs injuries (see Fitz v Burman, 107 AD3d 936, 968 NYS2d 16712d Dept 20131: Nyrell .Joyner-Packer v Sykes, 54 AD3d 727, 864 NYS2d 447 f2d Dept 20081). T he plaintiffs primarily rely upon the affidav it of the ir expert, who alleges to be board certified in pediatric medicine wi th a subspecially in neonatology. The plaintiffs' expert concludes that Dr. DeCristofaro and Dr. Aleti -Jacobs deviated from acceptable standards of medical care in rendering treatment to the infant plaintiff. and that such deviation was the proximate cause of the infant plaintiff's injuries. In particular, the expert asserts that Dr. Aleti-Jacobs, a senior fellow, made independent decisions in regards to the care and treatment of the infant plaintiff during his stay in the NICU, and that those independent treatment decisions resulted in the all eged injuries sustained by the infant plaintiff. I lowever, the expert's affirmation is not notari~ed. the name and signature have been redacted. and the plaintiffs have failed to submit an unredactcd original copy of their experf s affirmation for an in camera inspection (see Miller v Brust, 278 AD2d 462, 7 17 NYS2d 663 l2d Dept 20001; Gourdet v Hershfel<I, 277 /\02d 422, 716 NYS2d 714 r2d Dept 2000), Iv denied 96 NY2d 853, 729 NYS2d 669 [20011 ; see also Marano v Mercy Hosp., 24 1 AD2d 48, 670 NYS2d 570 [2d Dept 19981). ·'A redacted physician ' s affidavit should not be considered in opposition to a motion for summary judgment where a plaintiff docs not offer an explanation fo r the failure to identify the expert by name and does not tender an unredacted affidavit for in camera review" (Colletti v Deutsclr, 150 AD3d l l 96. 1198, 54 NYS3d 657 f2d Dept 2017]; see Derrick v North Star Orthopedics, PLLC, 121 AD3d 741, 994 NYS2d 159 l.2d Dept 2014]). Since summary judgment is the equivalent of a trial (see S.J. Caplin Assoc. v Globe Mfg Corp.. 34 NY2d 338, 357 NYS2d 478 [ l 974]), an unredacted original copy of the plaintiffs' expert's affirmation must be submitted to the court for in camera review (see Turi v Birk, 118 AD3d 979, 988 NYS2d 670 (2d Dept 2014]; Rose v Hor/011 Med. Ctr., 29 AD3d 977, 816 NYS2d 174 l2d Dept 2006]; Marano v Mercy Hosp.. supra). Thus, absent the submission ofan unredactcd expert's affirmation for the Court's in camera inspection and the failure to provide an explanation for the failure to idcnti fy the expert by name, the plaintiffs have failed to submit evidence in ad missible form sufficient to raise a lriable issue or fact (see Capobianco v Marchese, 125 AD3d 914. 4 NYS3d 127 [2d Dept 2015 I; France v Packy, 121 /\03d 836, 994 NYS2d 364 r1d Dept 2014]). An in camera review of an unredacted cxperl ' s affirmation submitted by a medical malpractice plaintiff seeking to demonstrate a triable issue on a summary judgment motion --strikes an appropriate balance between the plaintifrs right to withhold the identity of an expert prior to trial and the defendant's interest in testing the validity of the plaintiffs cause or action and assuring that an expert exists" (see McC(lrty v Community l/osp. of Glen Cove, 203 AD2d 432, 433. 610 NYS2d 588 l2d Dept 19941). [* 14] Kontos v Tovar Index No. 11-16828 Page 14 In any event, even if the Court were to overlook the failure to submit an unredactcd copy of the plaintiffs' experl's affirmation, the plainti ffs sti ll failed to raise a triable issue of fact, since their expert's affirmation is conclusory, speculative, and without basis in the record (see Giacinto v Slwpiro. 151 /\ D3d 1029, _ N YS3d _ [2d Dept 201 71; Simek v Stony Brook Assoc. , 140 A 0 3d 725, 33 NYS3d 369 l2d Dept 2016]; Senatore v Epstein, 128 AD3d 794, 9 NYS3d 362 l2d Dept 2015]). Accordingly, Dr. DcCristofaro's, the Stony Brook University Hospital defendants', Dr. Avila's, and Drs. Quirk and Ogbum's motions for summary judgment dismissing the complaint are granted. Dated: I J.S.C. FINAL DISPOSITION To: w.~AW Au.-6 (.Ls.- er 2a l 7 ~ TARANTTNO LAW FIRM, LLP Attorney for Defendant Quirk Rand Bldg., Suite 1500 14 Lafayette Square Buffalo, New York 14203 KAUFMAN BORGEEST & RYAN, LLP Attorney for Defendant Avila 1205 Franklin A venue, Suite 200 Garden City, New York 11530 PTASH NIK & ASSOC IATES, LLC Attorney for Defendant DeCristofaro 75 Maiden Lane, Suite 607 New York, New York 10038 _ x _ NON-.U~~rsYl~~~D ASHER

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