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October 2019: MCB Wins on Appeal – Second Department Affirms Dismissal

October 15, 2019

Senior Partner Anthony Sola, Partner Matthew Frank and Partner and Head of MCB’s Appellate Department, Barbara Goldberg were successful in obtaining a dismissal for our clients in the Second Department.


In this matter, plaintiff commenced an action to recover damages for personal injuries suffered as a consequence of her son’s premature birth, which she alleged was partially due to the negligence of her maternal fetal medicine (MFM) physician in addressing a short cervix.  Martin Clearwater & Bell LLP moved for summary judgment and dismissal of all claims against the MFM, demonstrating that the care he provided comported with accepted community standards of practice. 


Both the Supreme Court and the Appellate Division held that the submissions on behalf of the MFM were sufficient to demonstrate his entitlement to judgment as a matter of law and shift the burden to plaintiff to raise a triable issue of fact.  We argued that our MFM client, acting as only a consultant, properly recommended cerclage due to a short cervix, had no duty thereafter, and that any alleged delay attributable to the MFM was not a proximate cause of the premature labor.  The Second Department agreed, affirming the trial court’s dismissal of our client.

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