Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion and Affirmation in Support 1 Affirmation in Opposition 2 Affirmation in Reply 3 DECISION/ORDER In this action to recover damages for personal injuries, defendant Dr. Sapna Tandon (“Dr. Tandon”) moves for an Order pursuant to CPLR 3211, dismissing the complaint due to plaintiff’s failure to comply with CPLR 3012-a, requiring that a certificate of merit accompany the complaint, and because the claim is barred by CPLR 208, requiring an action for medical malpractice to be commenced within ten years of the alleged malpractice. The plaintiff commenced this action on January 6, 2020. Plaintiff alleged, inter alia, that on the date of her birth, March 15, 1999, after her delivery and during her transfer from the delivery room, Dr. Tandon caused her to suffer severe and permanent injuries when he tossed her to another physician. The premise of Dr. Tandon’s argument in support of dismissal is the contention that this action sounds in medical malpractice. Conversely, plaintiff asserts that this is a matter of ordinary negligence. “The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts.” Rabinovich v. Maimonides Medical Center, 179 A.D.3d 88, 113 N.Y.S.3d 198 (2d Dept. 2019); See Giordano v. Scherz, 99 A.D.3d 968, 953 N.Y.S.2d 135 (2d Dept. 2012); Russo v. Shah, 278 A.D.2d 474, 718 N.Y.S.2d 74 (2d Dept. 2000). Generally, a cause of action will be deemed to sound in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. See Rabinovich, 179 A.D.3d 88; Jeter v. New York Presbyterian Hospital, 172 A.D.3d 1338, 101 N.Y.S.3d 411 (2d Dept. 2019). “[W]hen the gravamen of the action concerns the alleged failure to exercise ordinary and reasonable care to ensure that no unnecessary harm befell the patient, the claim sounds in ordinary negligence.” D’elia v. Menorah Home and Hosp. for Aged and Infirm, 51 A.D.3d 848, 859 N.Y.S.2d 224 (2d Dept. 2008); See Rabinovich, 179 A.D.3d 88. In the instant matter, Dr. Tandon submits that there are standards, customs and practices regarding professional conduct in a delivery room. But he only provides an excerpt from the Hopkins Medicine website that states, in part, that warm blankets and heat lamps can provide warmth for newborns who are generally wet from amniotic fluid. Without proffering one scintilla of evidence regarding the transfer of a newborn from one person to another in the delivery room, Dr. Tandon’s bald assertion misses the mark. Indeed, the allegation of tossing a newborn infant into the arms of another physician is not the result of medical advisement but is an act that can be assessed by the common everyday experience of lay persons. See Rabinovich, 179 A.D.3d 88; Jeter, 172 A.D.3d 1338; Giordano, 99 A.D.3d 968; D’elia, 51 A.D.3d 848; Playford v. Phelps Memorial Hosp. Center, 254 A.D.2d 471, 680 N.Y.S.2d 267 (2d Dept. 1998). Consequently, as this is not an action sounding in medical malpractice, CPLR 3012-a is inapplicable. See CPLR 3012-a; Rabinovich, 179 A.D.3d 88; Jeter, 172 A.D.3d 1338. Furthermore, this suit is timely since it was commenced on January 6, 2020, which is prior to plaintiff’s 21st birthday and within three years of the expiration of plaintiff’s infancy. See CPLR 208; See also MP v. Davidsohn, 169 A.D.3d 788, 93 N.Y.S.3d 683 (2d Dept. 2019); Baron v. Brown, 101 A.D.3d 915, 957 N.Y.S.2d 237 (2d Dept. 2012). Accordingly, defendant’s motion to dismiss is denied in its entirety. This constitutes the Decision of this Court. Dated: January 4, 2021
