The following e-filed documents, listed by NYSCEF document number (Motion 006) 173, 174, 175, 176, 186, 187 were read on this motion to/for RENEW/REARGUE/RESETTLE/RECONSIDER. DECISION + ORDER ON MOTION In this action to recover damages for medical malpractice, the defendant Mount Sinai Hospital (Mount Sinai) moves pursuant to CPLR 2221(d) and (e) for leave to reargue and renew that branch of its prior motion which was for summary judgment dismissing the complaint in its entirety insofar as asserted against it, which had been denied in an order dated November 9, 2023 (MOT SEQ 005). The plaintiff opposes the motion. The motion is denied. On January 5, 2015, the defendant Brian J. Wagner, M.D., a Mount Sinai employee, performed a cesarean section procedure on the plaintiff at Mount Sinai. The plaintiff was discharged and last seen by Wagner on January 6, 2015, only to be readmitted to Mount Sinai for a hysterectomy on January 18, 2015, and remained under the care of other Mount Sinai physicians until January 23, 2015. The plaintiff commenced this action on July 18, 2017, alleging that Wagner and his fellow, Felipe Tudela, M.D., committed malpractice by failing to extract all placental tissue remaining after the procedure, thus causing bleeding and the necessity of the hysterectomy. She further alleged that, between January 6, 2015 and January 18, 2015, Mount Sinai and its medical staff, including Joanne Stone, M.D., were negligent in failing to diagnose the presence of retained placenta, despite a January 15, 2015 visit with Dr. Stone at which the plaintiff allegedly complained of bleeding. In its November 9, 2023 order, this court, among other things, awarded summary judgment to the defendant Brian J. Wagner, M.D., dismissing the complaint insofar as asserted against him as time-barred. The court also awarded summary judgment to Mount Sinai dismissing, on the merits, so much of the medical malpractice cause of action asserted against it as was premised on its own negligence in failing to diagnose that condition between January 6, 2015 and January 18, 2015, the date when the plaintiff was readmitted to Mount Sinai for a hysterectomy. The reason for this determination was that the plaintiff’s expert did not address the opinion of the defendants’ expert that neither Dr. Stone nor any other Mount Sinai personnel departed from good and accepted practice in this regard. With respect to the timeliness of the action against Mount Sinai, this court expressly explained that, “the movants d[id] not argue that the [remainder of the] action is time-barred as to Mount Sinai, based on the fact that Dr. Stone and other Mount Sinai personnel treated the plaintiff between December 22, 2014 and January 18, 2015, and at least until January 23, 2015 with respect to post-operative care referable to the hysterectomy. Thus, even though the claims against Wagner himself must be dismissed as time-barred, and Tudela may not be held individually liable both because he was never served with process and because he was a medical fellow acting solely under the direction of an attending physician (see Murphy Drosinos, 179 AD3d 461, 462 [1st Dept 2020]; Poter v. Adams, 104 AD3d 925, 927 [2d Dept 2013]), Mount Sinai may still be held vicariously liable for their negligence (see Hill v. St. Clare’s Hosp., 67 NY2d 72, 79 [1986]) under the continuous treatment doctrine since its medical personnel continued to treat the plaintiff for the same prior condition from the time of her readmission on January 18, 2015 until at least January 23, 2015 (see Artale v. St. Francis Hosp., 10 AD3d 439, 440 [2d Dept 2004])” (Hegazy v. Mount Sinai Hosp., 2023 NY Slip Op 34004[U], *19, 2023 NY Misc LEXIS 18953, *33-34 [Sup Ct, N.Y. County, Nov. 9, 2023] [Kelley, J.]). This court further concluded that, “[h]ence, that branch of the motion seeking summary judgment dismissing the medical malpractice cause of action against Mount Sinai, to the extent that it alleged that Mount Sinai was vicariously liable for Wagner and Tudela’s negligence in completing the cesarean section procedure and failing to diagnose the presence of retained placental tissue on January 5, 2015 must be denied” (id., 2023 NY Slip Op 34004[U], *22, 2023 NY Misc LEXIS 18953, *37-38) (emphasis added). Mount Sinai now argues that, inasmuch as the court awarded summary judgment to Wagner dismissing the claims against him as time-barred, it must now also award it summary judgment dismissing the entirety of the complaint against it as time-barred, since its only liability in connection with Wagner’s conduct was vicarious, and the dismissal of the claims against him required the dismissal of all of the claims against it. As the Appellate Division, First Department, has explained, “[a] motion for leave to reargue pursuant to CPLR 2221 is addressed to the sound discretion of the court and may be granted only upon a showing ‘that the court overlooked or misapprehended the facts or the law or for some reason mistakenly arrived at its earlier decision’” (William P. Pahl Equip. Corp. v. Kassis, 182 AD2d 22, 27 [1st Dept 1992], quoting Schneider v. Solowey, 141 AD2d 813, 813 [2d Dept 1988]; see Matter of Setters v. AI Props. & Devs. (USA) Corp., 139 AD3d 492, 4492 [1st Dept 2016]). A motion for leave to renew “‘shall be based upon new facts not offered on the prior motion that would change the prior determination or shall demonstrate that there has been a change in the law that would change the prior determination’” (McLaughlin v. Snowlift, Inc., 214 AD3d 720, 721 [2d Dept 2023], quoting CPLR 2221[e][2]; see Melcher v. Apollo Med. Fund Mgt., LLC, 105 AD3d 15, 23 [1st Dept 2013]; Dinallo v. DAL Elec., 60 AD3d 620, 621 [2d Dept 2009]; American Audio Serv. Bur. Inc. v. AT & T Corp., 33 AD3d 473, 476 [1st Dept 2006]). A motion to renew pursuant to CPLR 2221(e) “is intended to direct the court’s attention to new or additional facts which, although in existence at the time of the original motion, were unknown to the party seeking renewal and therefore not brought to the court’s attention” (Garner v. Latimer, 306 AD2d 209, 209 [1st Dept 2003]; see Healthworld Corp. v. Gottlieb, 12 AD3d 278, 279 [1st Dept 2004]; Foley v. Roche, 68 AD2d 558, 564 [1st Dept 1979]). To the extent that Mount Sinai now seeks dismissal of the entire complaint against it as time-barred, the court concludes that Mount Sinai has waived the right to seek reargument or renewal since it failed to raise that issue in connection with its initial summary judgment motion. Contrary to Mount Sinai’s contention, it was not obligated to wait and see if the complaint would be dismissed against Wagner as time-barred before it could seek dismissal on that ground as to itself. Rather, in connection with its argument that the action was time-barred as to Wagner, it easily could have argued simultaneously that the dismissal of the complaint as to Wagner required the dismissal of the entirety of the complaint as to it. It is improper to advance a new legal argument on a motion for reargument (see 388 Realty Owner LLC v. Amtrust Intl. Underwriters Ltd., 192 AD3d 449, 449 [1st Dept 2021]) or on a motion for renewal (see Atlas v. Smily, 156 AD3d 562, 562-563 [1st Dept 2017]). Moreover, while “‘[a] clarification of the decisional law is a sufficient change in the law to support renewal’” (McLaughlin v. Snowlift, Inc., 214 AD3d at 721, quoting Dinallo v. DAL Elec., 60 AD3d at 621; see Roundabout Theatre Co. v. Tishman Realty & Constr. Co., 302 AD2d 272, 272 [1st Dept 2003]), the mere issuance of an order determining the motion of a codefendant does constitute a “new fact” or a “change in the law” sufficient to support renewal (see Sheiffer v. Fox, 2023 NY Slip Op 33142[U], *5-6, 2023 NY Misc LEXIS 5449, *8-9 [Sup Ct, N.Y. County, Sep. 11, 2023] [Kelley, J.]; cf. Chibcha Rest., Inc. v. Kaminsky, 2011 NY Slip Op 33726[U], *1, 2011 NY Misc LEXIS 6792, *2 [Sup Ct, N.Y. County, Dec. 23, 2011] [Gische, J.] ["(a)n event that takes place after the prior order is made is not considered newly discovered evidence that would support a motion to renew"]; Transportation Workers Union of Am. Local 100 AFL-CIO v. Schwartz, 2005 NY Slip Op 30213[U], *17, 2005 NY Misc LEXIS 8407, *20 [Sup Ct, N.Y. County, Aug 31, 2005] [issuance of appellate order reinstating certain claims is not a "new fact" for purposes of renewal]). The court rejects Mount Sinai’s argument on the merits in any event, since the court did not overlook or misapprehend any facts or law presented to it in connection with the initial motion, and its dismissal of Wagner from the action does not constitute a new fact or change in law mandating or warranting the dismissal of Mount Sinai from the action. Mount Sinai relies on the decision of the Appellate Division, First Department, in Magriz v. St. Barnabas Hosp. (43 AD3d 331, 332 [1st Dept 2007]), in which that Court articulated the unremarkable rule that, “since plaintiff concedes that her claims against the individual doctors who treated her in St. Barnabas’s emergency room must be dismissed as untimely, it necessarily follows that any cause of action against St. Barnabas based on the theory of respondeat superior and premised upon the alleged malpractice of those doctors must also be dismissed” (emphasis added). In Magriz, however, there was no allegation that any of the claims asserted against St. Barnabas Hospital were timely under the continuous treatment doctrine, as that hospital’s treatment of the patient there was coterminous with the physicians’ treatment of the patient. The First Department’s analysis cannot, however, be distended to require the dismissal of the entire complaint against Mount Sinai since, here, upon application of the continuous treatment doctrine, the action was timely commenced against it on July 18, 2017. As the Appellate Division, Second Department, explained in Shapiro v. Good Samaritan Reg. Hosp. Med. Ctr. (55 AD3d 821, 823-824 [2d Dept 2008]), “[t]he plaintiff’s failure to commence a timely direct action against” several individual physicians “does not compel dismissal of the plaintiff’s vicarious liability claim against the hospital,” inasmuch as the individual physicians were “not necessary parties to an action seeking to hold the hospital vicariously liable on respondeat superior principles. The plaintiff’s timely commencement of this action against the hospital distinguishes this case from Magriz…and similar authority holding that a vicarious liability claim is extinguished where there is no primary liability upon which the claim of vicarious liability might rest” (citations omitted). Accordingly, it is, ORDERED that the motion is denied. This constitutes the Decision and Order of the court. CHECK ONE: CASE DISPOSED X NON-FINAL DISPOSITION GRANTED X DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: February 12, 2024
