Background
Tara Rhodes brought a medical malpractice action on behalf of her son against obstetricians Alan McNamara and Kellie Motschmann, and NYU Winthrop Hospital, alleging that the defendants failed to timely perform a cesarean section during her labor, causing injury to the infant. The defendants moved for summary judgment, supported by expert submissions arguing that their care met applicable standards. In January 2023, the Supreme Court, Nassau County, granted summary judgment dismissing the complaint against these defendants.
Rhodes then moved for reargument, contending that the trial court had overlooked a significant procedural problem: in their reply papers, the defendants had raised for the first time a new factual argument — that a nonparty “in-house” obstetrician at NYU Winthrop Hospital had been notified of Rhodes’s situation and had decided not to proceed with a cesarean section. This argument introduced a new witness and a new theory of why the care was appropriate, but because it appeared only in reply, Rhodes had no opportunity to submit responsive papers or expert rebuttal. In June 2023, the court granted reargument and, upon reconsideration, vacated its prior grant of summary judgment and denied the defendants’ motion. The defendants appealed.
The Court’s Holding
The Appellate Division affirmed the grant of reargument and the resulting denial of summary judgment to the hospital defendants. Under CPLR 2221(d)(2), a motion to reargue may be granted when the court “overlooked or misapprehended the facts or the law or for some other reason mistakenly arrived at its earlier decision.” Here, the Supreme Court properly concluded that it had overlooked a material procedural defect: by relying on the defendants’ new “in-house obstetrician” argument — introduced only in their reply, after Rhodes had already submitted her opposition — the court had accepted a factual theory that the plaintiff had never had the opportunity to address or rebut through her own expert. That is precisely the kind of oversight that reargument is designed to correct.
Key Takeaways
- New factual theories introduced by defendants in summary judgment reply papers — without prior notice to the plaintiff — can and often should be excluded from the court’s consideration, because the plaintiff has no opportunity to respond.
- A trial court’s reliance on new arguments raised only in reply, without affording the plaintiff a surreply opportunity, constitutes an “oversight” of the applicable procedural rules that can support a grant of reargument under CPLR 2221(d)(2).
- Medical malpractice defendants who prevail on summary judgment based on novel arguments in their reply may see that victory unwound on reargument if the plaintiff promptly and specifically identifies the procedural infirmity.
Why It Matters
This decision serves as an important reminder of summary judgment practice in New York medical malpractice cases: opening papers and reply papers are not interchangeable. When defendants introduce a new factual theory in reply — here, an undisclosed “in-house obstetrician” who supposedly evaluated and declined to perform the C-section — the plaintiff is deprived of the opportunity to respond. Courts that overlooked this procedural defect in the initial decision can and should correct it on reargument.
For medical malpractice plaintiffs’ counsel, the lesson is straightforward: if a defendant’s reply raises new facts or theories that your client never had the chance to rebut, move promptly for reargument and explain specifically why the court overlooked or misapprehended the procedural posture. For defendants’ counsel, this decision counsels front-loading all factual arguments — including theories about other providers who may have evaluated the patient — in the opening summary judgment motion, not in reply.