Waheed v. Kim

2026 NY Slip Op 30843(U)

• Court: New York Supreme Court, New York County
• Decided: March 4, 2026
• Docket: Index No. 805103/2019
• Status: Unpublished
• Author: Kathy J. King

Opinion

Waheed v Kim 2026 NY Slip Op 30843(U) March 4, 2026 Supreme Court, New York County Docket Number: Index No. 805103/2019 Judge: Kathy J. King Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.8051032019.NEW_YORK.002.LBLX036_TO.html[03/16/2026 3:45:43 PM] !FILED: NEW YORK COUNTY CLERK 03 / 0 9 /2 02 6 11: 4 9 AM! INDEX NO. 805103/2019 NYSCEF DOC. NO. 1344 RECEIVED NYSCEF: 03/05/2026

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. KA THY J. KING PART 06 Justice ----------------------------------------------------------------- ----------------X INDEX NO. 805103/2019 SEHRA WAHEED, Plaintiff, MOTION DATE 09/30/2025

MOTION SEQ. NO. - - -023 --- SONIA KIM, and GARDEN O8/GYN OF EAST 67TH, DECISION + ORDER ON Defendants. MOTION

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The following e-filed documents, listed by NYSCEF document number (Motion 023) 666, 667, 668, 677, 678,679,716,717,720,722,723,726,727,730,731,739,816,817,818,819,820,821,822,823,824, 825, 826, 830, 831, 957, 992, 993, 994, 995, 996, 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015, 1016, 1017, 1018, 1019, 1020, 1021, 1022, 1023, 1024, 1025, 1026, 1027, 1028, 1029, 1030, 1107, 1108, 1109, 1110, 1111, 1112, 1113, 1114, 1115, 1116, 1117, 1118, 1119, 1120, 1121, 1122, 1123, 1124, 1125, 1126, 1127, 1128, 1129, 1130, 1131, 1132, 1133, 1134, 1135, 1136, 1137, 1138, 1139, 1140, 1141, 1142, 1143, 1144, 1145, 1146, 1147, 1148, 1234, 1235, 1236, 1237, 1238, 1239, 1240, 1241, 1242, 1268, 1276, 1277, 1278, 1279, 1280, 1281, 1282, 1298, 1301, 1305, 1306 were read on this motion to/for JUDGMENT - SUMMARY

In this medical malpractice action, Plaintiff Sehra Waheed moves 1 and, Defendants,

SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a

GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN, cross move for summary

judgment pursuant to CPLR 3212. The Court's review herein is limited solely to Defendant's

cross-motion, since Plaintiff withdrew her summary judgment motion at oral argument. 2

Defendants' cross motion requests the following relief:

a. Pursuant to CPLR 3212, granting summary judgment in favor of Defendants, SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN, and dismissing Plaintiffs Complaint as against them in its entirety and with prejudice;

1 Plaintiff moved for an order granting summary judgment on the issue of liability against Defendant, Sonia Kim, M.D., and imposing severe monetary sanctions against Defense Counsels at Martin Clearwater & Bell, LLP. 2 Said withdrawal was also subsequently confirmed by Plaintiffs email dated December 9, 2025. 805103/2019 WAHEED, SEHRA vs. KIM, MD, SONIA ET AL Page 1 of 10 Motion No. 023

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b. Upon dismissal, amending the caption to delete Defendants, SONIA KIM, M.D. and BETHP AGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN, as a named party thereto; c. Upon dismissal, severing the claims insofar as asserted against Defendants, SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN; and

d. Upon dismissal and severance, directing the entry of judgment with prejudice in favor of Defendants, SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB- GYN; or e. In the alternative, pursuant to CPLR §§3212 and 3212(e), granting partial summary judgment as to Defendants, SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN, on any theory of liability as to which the Court determines that Plaintiff has failed to raise an issue of fact.

Plaintiff opposes the cross-motion.

BACKGROUND Between 2014 and 2018, Plaintiff, then a woman in her late 30s, sought treatment for

declining fertility, eventually receiving diagnoses of premature ovarian failure, Hashimoto's

thyroiditis, and diminished ovarian reserve. Multiple specialists informed her that her follicle-

stimulating hormone (FSH) levels were in the post-menopausal range and that successful

pregnancy was unlikely. On July 10, 2018, Plaintiff presented to Dr. Kim at Beth page Medical for

a surgical consult for cyst removal from the left ovary, and for assessment of Plaintiff's abnormal

uterine bleeding. Dr. Kirn recommended an endornetrial biopsy to rule out endometrial cancer

based on Plaintiff's abnormal uterine bleeding and family history. The biopsy could not be

completed as scheduled on July 16, 2018, due to Plaintiff's cervical stenos is and intolerance of

pain. Instead, a dilation and curettage ("D&C") procedure was scheduled for July 26, 2018, and

Dr. Kim entered an order for a prescription of Cytotec that was sent to the Plaintiff's pharmacy.

Plaintiff executed a Consent to Operation form for "D&C and endometrial biopsy,"

indicating Dr. Kim had "fully explained to [her] the nature and purpose of this procedure and ha[d]

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described the part of [her] body which will undergo this procedure." The form indicates that

Plaintiff was given a chance to ask questions which were all answered to her satisfaction. The form

further indicates that Dr. Kim "fully explained the risks, and drawbacks involved as well as the

possibility of complications from the procedure, and the benefits of the procedure ... and also

discussed alternatives including no treatment to the procedure along with those risks and benefits."

Prior to the procedure, Dr. Kim learned that Plaintiff had not followed Dr. Kim's

instructions to insert Cytotec vaginally the night prior to the procedure. While Dr. Kim attempted

to perform the procedure, Plaintiff was unable to dilate due to cervical stenosis, and the procedure

had to be terminated. Dr. Kim noted a cervical laceration upon removal of the tenaculum. Post-

operatively, Plaintiff complained of vaginal bleeding while in the recovery room and was

subsequently discharged with instructions to present to the nearest emergency room for repair of

the cervical laceration ifthere was any further bleeding. Plaintiff presented to Lenox Hill Hospital

the same day with complaints of vaginal bleeding. The next day, Plaintiff underwent a repair

procedure for a 2-to-3cm cervical laceration. No complications were noted, and she was

discharged the same day with instructions to follow up with her Obstetrician/Gynecologist

("OB/GYN").

On July 31, 2018, Plaintiff presented to nonparty OB/GYN surgeon, Dr. Sonya Brar, for a

surgical consultation. On September 19, 2018, Plaintiff underwent an outpatient bilateral ovarian

cystectomy performed by Dr. Brar, based on a transvaginal ultrasound performed on her initial

consultation. Plaintiff's pre- and post-operative diagnoses were bilateral simple ovarian cysts,

with suspected endometriosis and filmy adhesions of bowel to the right pelvic sidewall. Post

operatively, it was noted that the filmy adhesions were easily removed, and the cervix was

completely normal appearing. At Plaintiffs two-week post-operative visit on October 2, 2018,

gynecological examination revealed a normal appearing cervix with no bleeding noted or reported

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by Plaintiff. On July 5, 2022, it was documented by Plaintiffs primary care physician, Dr. Cluny

Lefevre, that the laceration had healed completely, and the claimed adhesions "around [the] cervix

and ovaries," had been removed. "Asherman's Syndrome was also ruled out." Since the

procedure, the Plaintiffs hormone levels have remained in the post-menopausal range, consistent

with her pre-existing condition of premature ovarian failure.

Plaintiff commenced this lawsuit by the filing of a Summons and Complaint on April 2,

2019. Plaintiff alleges that on July 26, 2018, Dr. Kim, as an employee of Bethpage Medical,

departed from accepted medical practice in the performance of a hysteroscopy and (D&C)

procedure, and proximately resulted in Plaintiff sustaining a laceration to the cervix and sequelae

including surgical menopause and infertility.

Defendants Dr. Kim and Beth page Medical, sued herein as Garden OB/GYN of East 67 th

d/b/a Garden OB-GYN, interposed a Verified Answer on June 20, 2019, and July 29, 2024,

respectively. Defendants now cross-move for summary judgement. The cross motion shall be

considered by the Court, notwithstanding the withdrawal of Plaintiffs motion for summary

judgment, since it seeks independent affirmative relief (see CPLR 3212 [b ]; see also US. Bank NA.

as Tr. for SCMC 2006-6 v Guercia, 61 Misc 3d 1220(A) [Sup Ct 2018]; Trevino v Pray, 2 I 7 AD3d

574 [1st Dept 2023]; Wimbledon Fin. Master Fund, Ltd. v Weston Capital Mgt. LLC, 150 AD3d 427

[ Ist Dept 201 7]).

DISCUSSION A defendant physician moving for summary judgment must make a prima facie showing

of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact

as to his or her alleged departure from accepted standards of medical practice, and by establishing

that the plaintiff was not injured by such treatment (see Alvarez v Prospect Hosp., 68 NY2d 320,

324 [1986]; Frye v Montefiore Med. Ctr. , 70 AD3d 15 [1st Dept 2009]; McGuigan v Centereach

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Mgt. Group, Inc., 94 AD3d 955 [2d Dept 2012); Sharp v Weber, 77 AD3d 812 [2d Dept 2010);

see generally Stukas v Streiter, 83 AD3d 18 [2d Dept 2011 ]). To satisfy this burden, a defendant

must present expert opinion testimony that is supported by the facts in the record, addresses the

essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual

in nature (see Roques v Noble, 73 AD3d 204, 206 [1st Dept 201 OJ ; Joyner-Pack v Sykes, 54 AD3d

727 [2d Dept 2008); Koi Hou Chan v Yeung, 66 AD3d 642 [2d Dept 2009); Jones v Ricciardelli,

40 AD3d 935 [2d Dept 2007)).

In support of their motion, Defendants submit the expert affirmation of Edgar Mandeville,

MD ("Dr. Mandeville"), a board-certified OB/GYN, who opines to a reasonable degree of medical

certainty, that the care and treatment provided by Dr. Kim and Bethpage Medical were at all times

within good and accepted standards of medical and OB/GYN practice.

He opines that the hysteroscopy and D&C were medically necessary and utilized

appropriate judgment to rule out cancer, given the Plaintiffs family history, together with history

of irregular menses, post-menopausal bleeding, and imaging that revealed a thickened

endometrium and a myometrial mass. Dr. Mandeville further contends that the use of a single tooth

tenaculum was a standard surgical practice in 2018 and remains so today, refuting Plaintiffs claim

that the instrument was outmoded or dangerous.

Regarding the alleged deviations, the expert found no merit in the claim that Dr. Kim was

negligent for proceeding without Cytotec. While Cytotec is helpful for cervical dilation, it is not

mandatory, and the expert argues that the risk of delaying a potential cancer diagnosis far

outweighed the benefits that could be gained from taking Cytotec. Additionally, Dr. Mandeville

maintains that Dr. Kim's surgical technique was proper and opines that the resulting cervical

laceration is described as a known and accepted complication of the procedure that can occur in

the absence of negligence. Dr. Mandeville also emphasizes that Dr. Kim timely identified the

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laceration, achieved hemostasis in the operating room, and provided appropriate post-operative

care and instructions.

On the issue of causation, Dr. Mandeville concludes to a reasonable degree of medical

certainty that none of the alleged acts or omissions by Dr. Kim were the proximate cause of the

plaintiffs injuries, and points to Plaintiffs extensive medical history dating back two years prior

to Dr. Kim's treatment showing that Plaintiff already suffered from premature ovarian failure,

elevated FSH levels, and severely diminished ovarian reserve. Dr. Kim opines that these pre-

existing conditions are in no way causally related to the cervical laceration Plaintiff sustained

during the D&C procedure. Regarding Plaintiffs allegations that her claimed infertility resulted

in "surgically induced premature menopause," Dr. Mandeville opines that the 2-to-3cm laceration

was repaired within 24 hours of the injury, and was fully healed and normal-appearing within two

months. In this regard, Dr. Mandeville further opined that Plaintiffs pre-existing cervical stenosis

contributed to Plaintiff's infertility which further shows that Plaintiffs infertility is due to the

natural progression of her pre-existing condition, and not due to Defendants' negligence.

Dr. Mandeville also addressed Plaintiff's claims that she developed chronic adhesions

and/or Asherman's Syndrome as a result of the alleged cervical laceration. He cites Dr. Brar's

September 18 th operative report that shows she easily removed filmy adhesions existing from the

bowel to Plaintiff's right pelvic sidewall, together with the July 5, 2022 notes of Plaintiff's treating

physician that indicate the claimed adhesions around the cervix and ovaries had been removed and

that Ashennan's Syndrome was ruled out. According to Dr. Mandeville, Asherman's Syndrome

is scarring of the lining of the uterus and cannot be attributed to trauma to the cervix because the

cervix is external to the lining of the uterus. As a result, he opines that contrary to Plaintiff's

claims there is no showing that Plaintiff sustained the claimed chronic adhesions and/or

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Asherman's Syndrome, or surgical menopause as a result of the care and treatment provided by

the Defendants.

Based on Dr. Mandeville's expert affirmation, the Court finds that the moving Defendants

have established prima facie entitlement to summary judgment as a matter of law as to Plaintiffs

claim of medical malpractice.

Once the proponent of a summary judgment motion makes a showing of entitlement to

dismissal by tendering evidence sufficient to demonstrate the absence of material issues of fact,

the burden shifts to the non-moving party "to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact which require a trial of the action"

(see Alvarez, 508 NYS2d at 925; see also Menzel v Plotnick, 202 AD2d 558 [2d Dept 1994];

Salamone v Rehman, 178 AD2d 63 8 [2d Dept 1991 ]).

Plaintiff, in opposition, submits an affirmation of Dr. Frederick A. Gonzalez who opines

to a reasonable degree of medical certainty. His medical training includes a residency in

Obstetrics/Gynecology and a fellowship in maternal and fetal medicine. Dr. Gonzalez opines that

Dr. Kim departed from good and accepted medical care, by "failing to inform the patient of less

invasive methods of evaluating abnormal uterine bleeding," "proceeding with the hysteroscopy

despite knowing that the patient did not take the Cytotec", as well as "continuing the procedure

despite the failure to take the Cytotec." According to Dr. Gonzalez, Dr. Kim failed to properly

identify the location and severity of the laceration, failed to transfer Plaintiff to a hospital for proper

surgical repair, and utilized unsterilized instruments. Dr. Gonzalez opines that Dr. Kim negligently

caused a 2-3 cm cervical laceration,

While Defendants' expert addresses the allegations set forth in Plaintiffs complaint, Dr.

Gonzalez's affirmation is silent as to specific deviations attributable to each defendant, nor does

he explain how such deviations proximately caused the Plaintiffs alleged injuries (see Sukhraj v

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New York City Health and Hospitals Corp., 106 AD3d 809 [2d Dept 2013] [holding that summary

judgment is warranted where plaintiffs' expert failed to address important elements set forth by

the defendant's expert regarding causation]; Barrett v Hudson Valley Cardiovascular Associates,

91 A.D.3d 691 [2d Dept 2012] [ruling that an affirmation that fails to address contentions raised

by defense experts and fail to refer to any specific facts or other evidence is not sufficient to raise

issue of fact]; Swanson v Raju, 95 AD3d 1105 [2d Dept 2012] [holding that the plaintiff's expert

failed to raise a triable issue of fact because the expert failed to address important elements of the

defense expert's affirmation]). Significantly, Dr. Gonzalez fails to define the applicable standard

of care required of Dr. Kim during the period of Plaintiff's treatment.

In the absence of a clear nexus between a defined standard of care, a specific departure

therefrom, and the resulting injury, the Court finds that Plaintiff's expert affirmation is simply

conclusory in nature and fails to raise a triable issue of fact sufficient to defeat Defendants

entitlement to summary judgment (see Holbrook v United Hosp. Medical Ctr., 248 AD2d 358 [2d

Dept 1998]; see e.g., Prete v Rafla-Demetrious, 224 AD2d 674 [2d Dept 1996]; Canter v Mu/nick,

60 NY2d 689 [ 1983]; see also Fridovich v David, 188 AD2d 984 [3d Dept 1992]; Ferrara v. South

Shore Orthopedic Associates, 178 AD 2d 364 [ I st Dept 1991]). Accordingly, Defendants' cross-

motion for summary judgment as to Plaintiff's medical malpractice cause of action is granted.

As to the branch of Defendants' cross-motion for lack of informed consent, it is well-settled

that a defendant moving for summary judgment on a lack of informed consent claim must

demonstrate that a plaintiff was informed of any foreseeable risks, benefits, or alternatives of the

treatment rendered (see Henry v Beza/el Rehabilitation & Nursing Center, 2020 NY Slip Op

30369(U) [Sup Ct, NY County 2020]; Koi Hou Chan v Yeung, 66 AD3d 642 [2d Dept 2009]).

Dr. Mandeville ' s opinion, Defendant properly obtained Plaintiff's informed consent prior

to the July 26, 2018 hysteroscopy and D&C procedure at issue. The form further indicates, inter

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alia, that Dr. Kim "fully explained the risks, and drawbacks involved as well as the possibility of

complications from the procedure, and the benefits of the procedure ... and also discussed

alternatives including no treatment to the procedure along with those risks and benefits" (see

Johnson v Staten Is. Med. Group, 82 AD3d 708, 709 [2d Dept 2011] [holding that where the

plaintiff signed an informed consent form, the form itself was sufficient to carry the defendants'

prima facie burden on summary judgment]).

Further, Dr. Kim's deposition indicated that before attempting the D&C, she discussed

with Plaintiff the risks of the procedure, which included bleeding and cervical laceration. Notably,

the record establishes that Plaintiff testified at her deposition that she was familiar with a D&C

procedure, as she had undergone such a procedure twice before in 2004 and 2013, and "knew what

the procedure is about." Evidence of an "informed consent" discussion in the form of deposition

testimony or medical records strengthens the defendants' showing in this regard (Orphan v Pilnik,

66 AD3d 543 [1st Dept 2009], affd 15 NY3d 907 [201 0]).

The record also demonstrates that Plaintiff was also aware of her pre-existing cervical

stenosis, as the endometrial biopsy on July 16, 2018 could not be completed due to cervical

stenosis, thereby prompting the July 26, 20 I 8 D&C procedure at issue as an alternative. Dr.

Mandeville opined that, even though Plaintiff had advised Dr. Kim that she had not taken the

Cytotec as instructed, following a detaile~ discussion with Dr. Kim. Dr. Mandeville opines that

Dr. Kim's clinical suspicion of malignancy was appropriate and that, following a full disclosure

of the risks, Plaintiff agreed to proceed with the procedure.

The Court finds that Defendants have satisfied their burden of proof on the lack of informed

consent claims and, Plaintiff, in opposition, has failed to raise a triable issue of fact, therefore,

dismissal is warranted.

Accordingly, it is hereby

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ORDERED that the Defendants' cross motion for summary judgment is granted; and it is

further

ORDERED that the Plaintiff's Complaint is dismissed with prejudice as against

Defendants SONIA KIM, M.D. and BETHPAGE MEDICAL PLLC d/b/a GARDEN OB/GYN

s/h/a GARDEN OB/GYN OF EAST 67TH d/b/a GARDEN OB-GYN; and it is further

ORDERED that the Defendants are to serve a copy of this order upon the Plaintiff with

notice of entry within twenty (20) days of entry of this; and it is further

ORDERED that, within twenty (20) days of the date of this Order, the moving Defendants

shall serve a copy of this Order upon the County Clerk and the Clerk of the General Clerk's Office,

which shall be effectuated in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases, accessible at the "E-

Filing" page on this court's website; and it is further

ORDERED that the Clerk is directed to enter judgment in accordance with this Order.

This constitutes the Decision and Order of the Court.

3/4/2026 DATE KATHG, J.S.C

~ CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRANTED □ DENIED GRANTED IN PART 0 OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT □ REFERENCE

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