Maria Pilar Bustos, et al., Appellants,v.Lenox Hill Hospital, Respondent, Pedro Segarra, M.D., et al., Defendants.

Brief

N.Y.April 30, 2014

1 December 26, 2013 Judges of the Court of Appeals New York State Court of Appeals 20 Eagle Street Albany, NY 12207 Re: Bustos v. Lenox Hill Hospital APL-2013-00234 Dear Honorable Sirs: Plaintiffs-Appellants Maria Pilar Bustos and Cesar Bustos submit the following written arguments in support of their position, pursuant to Rule 500.11 (c) of this Court’s Rules of Practice. Plaintiffs adopt all arguments raised in their brief submitted in the Appellate Division, First Department, which is also being furnished to this Court along with copies of defendant-respondent Lenox Hill Hospital’s brief. Plaintiffs respectfully seek reversal of the First Department’s decision entered April 16, 2013 and reinstatement of the order of the Supreme Court, County of New York (Hon. Carol Edmead), dated July 19, 2011 and entered July 26, 2011 (A6a)1, denying Lenox Hill’s post-trial motion to set aside the unanimous verdict in plaintiffs’ favor as a matter of law or as against the weight of the evidence. Plaintiffs respectfully request that the Court terminate Section 500.11 review and proceed with full briefing and oral argument of this appeal, due to the significance of the issue of whether it is proper to set aside a jury verdict that was 1 Parenthetical references are to the Appendix. 2 supported by ample evidence, merely because plaintiffs’ qualified medical expert, in rendering his opinion in response to a hypothetical question on deviation and causation on direct examination, did not elaborate a technical basis for his opinion, particularly in view of the fact that defense counsel neither moved to strike his testimony nor sought specificity as to the criteria supporting the opinion on cross-examination. This evidentiary question, which is of statewide interest, arose directly out of the First Department’s order of reversal herein. PRELIMINARY STATEMENT AND PROCEDURAL HISTORY OF THE CASE This is an action to recover damages for the life-altering injuries sustained by plaintiff Maria Pilar Bustos while giving birth at Lenox Hill Hospital on April 1, 2003 and for loss of services suffered by her husband, Cesar Bustos, who was present for the delivery and was an eyewitness to the vaginal birth. Following trial, the jury returned a unanimous verdict of $5.5 million [$1.5 million - past pain and suffering; $3 million - future pain and suffering (40 years); $500,000 - past loss of services; $500,000 - future loss of services (37 years)]. This is the fourth appeal during almost a decade of litigation in this case, including the unanimous affirmance by the First Department at 80 A.D.3d 539 (2011) of the denial of defendant’s motion for summary judgment, wherein Justice Lobis, found the existence of triable issues of fact on deviation from good and accepted medical care upon the opinion of the trial expert, Michael Plotnick, M.D., the same opinion that was evinced at trial. At trial, through physical demonstrations and testimony, the jury learned that plaintiff, a previously healthy woman, who was solely within the exclusive control of the delivery nurse and first year resident, was repeatedly maneuvered by pushing her legs toward and into her stomach when the patient heard a noise like a crack, at which time she felt “terrible pain.” Plaintiff had indeed suffered a 9 cm pubic symphysis diastasis (separation) and fracture requiring operative closure with internal fixation to repair the pelvis at Hospital for Special Surgery (A445, A460-61, A1643, A1648), and ultimately three other invasive surgeries including a laminectomy and insertion of a bone stimulator, the cause of which was documented in Lenox Hill’s own medical chart as a hyper flexion abduction maneuver, in the request for orthopedic consultation (A1647). Neither defendant’s medical expert, Dr. Prince, nor Dr. Segarra, plaintiff’s obstetrician, were able to come forward with any non-negligent 3 explanation for the injuries. Plaintiffs’ expert, Michael Plotnick, M.D, a Board certified gynecologist, testified based upon the Lenox Hill records and trial testimony, opining that plaintiff suffered “extensive pelvic disruption” (A496, A524). He knew that the patient received an excessively dense epidural block, because the doctors had to raise her blood pressure by administering ephedrine twice (A525, A526, A528, Trial Exhibit A –A1629). The doctor explained how an epidural is a combined anesthetic and narcotic, numbing the woman from the belly button down (A526). Doctors desire that the patient feel some pain and much pressure, so that she can help in pushing (A526). Here, because of Maria’s height and weight, the neural block was so strong that it interfered with the blood flow and the pressure had to be brought back up (A526, A527). “[O]nce the density of this bloc, very dense, was documented, then things should have been done a little bit differently” (A525). Another sign of the dense epidural block was that even though the patient was fully dilated, she had no urge to push (A529). Dr. Plotnick found a deviation from the appropriate standard of care with respect to the use of an exaggerated hyper flexion abduction maneuver during the birth at a time of reduced sensation due to the dense epidural block (A526-27, A530). This maneuver involves pulling the patient’s legs with knees toward her chest and out to attempt to rotate the pelvis (A530). As prefatory support for the doctor’s opinion that the hyper flexion abduction maneuver constituted a deviation, he explained that self-maneuvering by the patient allows for adjustment based upon the measure of pressure that she can tolerate, because a person can exert only a certain amount of pressure on her own body, as opposed to an outside force (A530). “I thought it was clearly evident that her legs were pushed back by several assistants and for a prolonged period of time” (A532). The jury saw the request for consultation and/or treatment portion of the Lenox Hill records (Trial Exhibit A - A1647), which documented the hyper flexion abduction maneuver (A531, A1647). Dr. Plotnick affirmatively opined with a reasonable degree of medical certainty that the “birthing maneuvers were excessive”, constituted a deviation from the appropriate standard of care and “caused these injuries” (A562). Q: And were the excessive birthing maneuvers that caused these injuries a deviation from the appropriate standard of care? A “Yes.” The opinion was offered in response to a hypothetical question (A557, A562) following counsel’s reading to the expert of a) plaintiff’s earlier trial testimony describing the precise manner in which maneuvers were done, including the positioning of her legs (A557-61), and b) orthopedic consult notes, progress notes and other orthopedic entries in Exhibits 19 and A (A561-62). 4 Defense counsel did not move to strike or question Dr. Plotnick about the supporting basis for his opinion on cross-examination which commenced immediately following the expert’s opinion. The jury returned with a unanimous verdict in favor of the plaintiffs, and in response to the separate questions with which it was charged, found in the affirmative that Lenox Hill Hospital nurses and/or physicians and/or staff departed from accepted standards of medical practice in the maneuvers performed on plaintiff during delivery, in the dosage of epidural block administered during delivery and that these departures were substantial factors in causing plaintiff’s injuries (A1362-63). Defendant Lenox Hill Hospital appealed from an order of the Supreme Court, New York County (Hon. Carol Edmead), dated July 19, 2011 and entered July 26, 2011 (A6a) which denied Lenox Hill’s post-trial motion to set aside the jury verdict as a matter of law or as against the weight of the evidence. Defendant did not assert a single evidentiary error. In a 15 page decision, the Justice presiding at the trial thoroughly laid out every contention, discussed the evidence and issues on liability and damages and refused to disturb the verdict, where defendant received a sound and fair trial: The record also supports the jury’s finding that defendants’ birthing maneuvers were a departure and that such departure caused plaintiff’s injuries. “In a medical malpractice action, as in any negligence action, the plaintiff has the burden of proving, by a preponderance of the evidence, that the defendant’s negligence, in this case the departure from good and accepted medical practice, proximately caused the injury claimed” (Mortenson v. Memorial Hosp., 105 AD2d 151, 483 NYS2d 264 (1st Dep’t 1984]). “If such negligence is a substantial factor in producing the injury, it is a proximate cause of the injury” (id.). Further, a “plaintiff is not required to eliminate every other possible cause….That another possible cause concurs with a defendant’s negligent act or omission to produce an injury does not relieve defendant from liability if the plaintiff “shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” 5 …If conflicting inferences may be drawn, the choice of inference is for the jury.” The evidence supports a finding that it was more likely than not that plaintiffs’ injuries were caused by excessive birthing maneuvers. As pointed out by plaintiffs, LHH’s records, namely, the notation that plaintiff suffered “left lower extremity [pain] most probably related to position during second stage of labor” coupled with plaintiff testimony of how her legs were being positioned “toward” her stomach and the “loud cracking” sound plaintiff heard, indicate that the birthing maneuvers caused plaintiff’s resulting injuries. Dr. Plotnick, testified based on this review of the LHH chart, the Hospital for Special Surgery chart, and plaintiff’s testimony. Plaintiff stated that LHH staff members “would push [her] legs toward my stomach” for “four or five times” and that this maneuver was “painful.” The jury also had the opportunity to observe the witnesses demonstrate the manner in which the birthing maneuvers were performed and led to the injuries claimed. Thus, the jury was entitled to disregard any and all portions of conflicting testimony, including testimony that plaintiff’s injuries were the result of hormonal changes she underwent during pregnancy and labor. As the record supports Dr. Plotnick’s conclusion, and the jury’s finding, that to a reasonable degree of medical certainly the birthing maneuvers caused plaintiff’s injuries, vacatur of the jury award on such issues is unwarranted. (A17a-21a) On the weight of the evidence review, the trial Court addressed whether a fair interpretation of the evidence supported the decision made by the jury, and held in the affirmative (A17a). On appeal, the Appellate Division, First Department reversed, on the law, without costs, and granted defendant’s motion to set aside the verdict: 6 The only testimony plaintiffs’ expert gave as to the alleged deviation from the accepted standard of medical care in the performance of the birthing maneuvers was that the maneuvers “were excessive and caused th[e] injuries” and deviated from the appropriate standard of care. He did not explain or in any other way support his opinion, which therefore was speculative and conclusory and without probative force (see e.g. Rivera v Greenstein, 79 A.D.3d 564, 568 [1st Dept 2010]). As to plaintiffs’ theory that there was a deviation from the accepted standard of care in the dosage of the epidural block given to plaintiff Maria, their own expert conceded that the dosage was standard and appropriate. Plaintiffs moved to reargue or in the alternative, for leave to appeal to this Court, asserting that the record established a prima facie case on both theories asserted and that they were entitled to the benefit of the jury verdict. Plaintiffs asserted that the First Department overlooked the fact that although the dosage of the epidural block was “standard”, considering plaintiff’s height, weight and the criteria that the anesthesiologist used on her, the dosage was just too dense for her, and was a contributing factor, because the combined anesthetic and narcotic interfered with the natural urge to push, when there is some pain and pressure. It was plaintiffs’ argument that contrary to the decision of the Appellate Court, CPLR 4515 unequivocally sets forth “[u]nless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based. Upon cross-examination he may be required to specify the data and other criteria supporting the opinion.” Plaintiff explained that here, where a proper factual basis from the record was read to Dr. Plotnick just moments before the questions on deviation and causation were asked (A567-62), the expert’s testimony was sufficient to establish a prima 7 facie case. Indeed, it has been held, that [while] expert testimony must be based on facts supported by the evidence…, the facts need only be ‘fairly inferable’ from the evidence.” Stringile v. Rothman, 142 A.D.2d 637, 638 (2nd Dep’t 1988). Defense counsel elected not to probe further into the foundation of the physician’s opinion in his cross-examination. Finally, plaintiffs argued that the sole case cited by the First Department in support of the decision to set aside the verdict, Rivera v. Greenstein, 79 A.D.3d 564 (1st Dep’t 2010) is inapposite to the case at bar. The plaintiff in Rivera, asked that the defendant physician be judged by the hindsight knowledge of the infant’s condition set forth in an autopsy. The instant case, however, asserted affirmative acts as the cause of the injuries, to wit, actual physical manipulations that caused the catastrophic pelvic injuries. While there were disclosures of post-act medical records in documenting the nature of the prior act, the records were not utilized to establish hindsight knowledge, but to confirm that the consulting orthopedist understood that plaintiff’s life-altering condition arose during a hyper flexion abduction maneuver and positioning during second stage labor (A1647). Indeed, “hindsight knowledge” is wholly extraneous to this case. In sum, it was claimed by plaintiffs that since there was not a failure of proof, the opinion was neither speculative nor conclusory under Court’s decision in Tarlowe v. Metropolitan Ski Slopes, Inc., 28 N.Y.2d 41, 414 (1971) (expert was not obligated to lay out the technical foundation for his opinion on direct examination - “To the extent defendant considered it incomplete, defendant could have developed the issue on cross-examination.” ) Hence, the record was legally sufficient to support the verdict in plaintiffs’ favor, i.e, that there was sufficient basis to support the jury’s findings and the verdict was not against the weight of the evidence, which was reached on a fair interpretation of the evidence. By order dated and entered August 13, 2013, the First Department granted plaintiffs’ motion for leave to appeal to this Court, certifying the question of law, “Was the order of this Court, which reversed the order of Supreme Court, properly made?” The First Department further certified that its determination was made as a matter of law and not in the exercise of discretion. 8 ARGUMENT PLAINTIFFS ESTABLISHED A PRIMA FACIE CASE ON THE SUBMITTED THEORIES OF LIABILITY A. The Record Supports The Jury’s Finding As to a Departure From Accepted Standard of Medical Practice in the Birthing Maneuvers and Causation Before trial, defendants moved for summary judgment seeking dismissal of this matter based on the affirmation of Dr. Henry Prince who opined, as he did during his testimony at trial, that there was no evidence of malpractice found in the Lenox Hill Hospital chart. Justice Lobis first determined that defendants had met their initial burden in moving for summary judgment and went on to examine the opposing affidavit of plaintiffs’ expert, Dr. Michael Plotnick. Summary judgment was denied by Justice Lobis after a careful review of the medical records and the warring conclusions of the experts (A2158). Justice Lobis held that “there are factual disputes as to whether there were departures from the standard of care” (A2165). Specifically, Justice Lobis recognized that [t]he parties dispute the point during the delivery when force was used and the amount of time plaintiff was pushing. Moreover, the injury to the pelvis (which included a fracture) was not adequately explained by the normal process of symphysis pubis softening during labor. (A2165) Defendant appealed, and the First Department affirmed Justice Lobis’ decision, stating that Dr. Plotnick’s testimony “was sufficient to raise triable issues of fact as to whether defendants’ treatment of plaintiff before and during delivery departed from good and accepted standards of obstetric care” (A2168). This is the very issue that defendants revisited in the post-trial motion and again on the most recent appeal before the First Department. At trial, both sides adduced medical evidence consistent with the medical opinions submitted with the summary judgment motion. Notably, neither plaintiffs’ 9 nor defendant’s experts were cross-examined with any alleged inconsistencies between their testimony and their earlier affirmations. At trial, defendant was afforded a full opportunity to present all evidence and expert opinions to the jury. There were no defense witnesses who were not permitted to provide testimony, nor any opinions from defense experts excluded by the court, nor any exhibits offered by the defense that were not fully admitted into evidence without redaction, nor any physical demonstrations of birthing maneuvers that were excluded from evidence. At the close of evidence, questions of fact as set out by Justice Lobis and affirmed previously by the Appellate Division, were submitted to the jury. In a unanimous verdict, the jury resolved all issues in plaintiffs’ favor, answering all questions of negligence and proximate cause in the affirmative. Defendant, in its post-trial motion and on appeal, challenged the jury’s resolution of those questions of fact, arguing that plaintiff failed to set forth a prima facie case of medical malpractice. Defendant, once more, raised the argument that the opinion rendered by plaintiffs’ expert was somehow “conclusory” because Dr. Plotnick never explained “how” the hyper flexion/abduction maneuvers that caused the open-book fractures of Mrs. Bustos’ pelvis were excessive. The First Department found the testimony of plaintiffs’ qualified expert to be deficient supposedly because on direct testimony, he “did not explain or in any other way support his opinion, which, therefore, was speculative and conclusory and without probative force.” CPLR 4515, however, clearly states Unless the court orders otherwise, questions calling for the opinion of an expert witness need not be hypothetical in form, and the witness may state his opinion and reasons without first specifying the data upon which it is based, Upon cross-examination he may be required to specify the data and other criteria supporting the opinion. It is not clear what information, exactly, defendant maintains should have been introduced, especially since at the time of the malpractice, defendants failed to document in the chart, and did not recall at trial, exactly what maneuvers they performed. During the trial, in addition to the vivid testimony of plaintiff with respect to 10 the maneuvers foisted on her and the startling crack heard by both Mr. and Mrs. Bustos during the time defendant’s employees were performing a hyper flexion abduction maneuver on Maria (A89-91), the jury had before it medical records reflecting the infliction of a sudden devastating injury [orthopedist who was called in to evaluate Maria’s highly unusual complaints of pain wrote that she was suffering from “buttock and low back pain since a hyper flexion abduction maneuver during childbirth,” a note signed off on by plaintiff’s attending obstetrician, Dr. Segarra (A441-42, A1647)]. Of necessity, the expert and the fact witnesses were brought out of the witness box to physically demonstrate for the jury the birthing maneuvers that are the subject of this lawsuit. Various physical demonstrations were given by Maria Bustos, Drs. Prince, Segarra and Plotnick as well as Nurse Flores, all of which were viewed by the jury (A91, A92, A457, A461, A470, A475, A683-84, A790, A795, A1191-94). The record, of course, cannot show what the jury saw in those demonstrations submitted by both sides. Defendants cannot persuasively argue that there is insufficient proof regarding how the maneuvers were negligently performed when much of the evidence shown to this jury on this subject, at defendants’ request, was unrecorded physical demonstrations in the courtroom. In fact, Nurse Flores freely admitted she performed maneuvers that she failed to document (A1191, A1194, A1213). Moreover, Justice Edmead, who presided over the trial, viewed the demonstrations as well and held that the record “supports the jury’s finding that defendants’ birthing maneuvers were a departure and that such departure caused plaintiff’s injuries,” taking particular note of the physical demonstrations (A19a). “The jury also had the opportunity to observe the witnesses demonstrate the manner in which the birthing maneuvers were performed and led to the injuries claimed” (A20a). The jurors were in the best position to observe the physical demonstrations made in the courtroom by both plaintiffs’ and defendant’s witnesses. Independent of any expert opinion, it became readily manifest to the jury, which also learned of the sudden, simultaneous audible crack, that the birthing maneuvers performed were excessive and caused Maria’s pelvic separation and “open-book fracture.” The unanimous jury verdict on these issues should not have been disturbed. It is plaintiffs’ position that the First Department’s decision on review before this Court, reinstates a rigidity in the practical questioning of experts that CPLR 4515 was intended to obviate. The Advisory Committee on Practice and Procedure, which drafted CPLR 4515, stated “[t]he rule is designed to provide the trial judge with the discretion necessary to obtain the maximum benefits from the use of 11 witnesses by limiting the abuse of hypothetical questions. It will permit the expert to state what he knows in a natural way; at the same time, it gives the cross-examiner full opportunity to discredit him.” N.Y. Adv. Comm. on Practice and Procedure; Second Preliminary Report, Legis. Doc. No. 13, p.263 (1958). Here, where plaintiffs’ counsel did preface his questioning with a reading of key testimony and notes from medical records in evidence (A557-62), the trial Justice permitted the questioning on deviation and causation and affirmed the jury’s finding on the post-trial motion. Most significantly, defense counsel neither moved to strike the testimony, nor further explored the foundation of Dr. Plotnick’s opinion or credibility on the theory of excessive maneuvers or dosage of the epidural block. This Court, in Tarlow v. Metropolitan Ski Slopes, Inc., supra, 28 N.Y.2d 410, 413-14 (1971), the seminal decision construing CPLR 4515, stated Preliminarily, the issue was never preserved by defendant for review. Its objection at trial recited the inclusion in the hypothetical question of a fact allegedly not supported by the evidence. No objection was made, following the witness’s response, to the technical basis for his computation. However, reliance need not be placed upon this procedural omission. The rule under CPLR governing the testimony of qualified experts is not as defendant states it. An expert need not give technical reason or bases for his opinion on direct examination. The matter may be left for development on cross-examination. If the facts in the hypothetical question are fairly inferable from the evidence, the expert may state his opinion without further foundation. The extent to which he elaborates or fails to elaborate on the technical basis supporting the opinion affects only the weight of the expert testimony. *** Here the jury was presented, through hypothetical question, with the facts of the accident relied upon by the expert in giving his opinion. To the extent defendant considered it incomplete, defendant could have developed 12 the issue on cross-examination. At bar, the post-trial motion to set aside a verdict and enter a judgment as a matter of law in favor of the moving party, or, in the alternative, seeking a new trial, pursuant to CPLR 4404(a), challenged the legal sufficiency of the evidence. Justice Edmead was duty bound to view the evidence in the light most favorable to the plaintiffs, affording the plaintiffs every inference reasonably drawn from those facts presented at trial. Since the case presented conflicting expert testimony, the weight to be accorded to the respective experts was a matter peculiarly within the province of the jury. This Court has held that in order to justify dismissing the complaint for insufficiency, “it is necessary to first conclude that there is simply no valid line of reasoning and permissible inferences which could possible lead rational men to the conclusion reached by the jury on the basis of the evidence presented at trial” and the verdict would have to be “utterly irrational.” Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 43, 499 (1978); Schneider v Kings Highway Hospital Center, Inc., 67 N.Y.2d 743 (1986) (plaintiff is not required to prove the exact nature of defendant’s negligence and need not refute every remote possibility where the facts and conditions from which defendant’s negligence and the causation of the event may be “reasonably inferred”). In the instant case, plaintiffs adduced proof that Maria’s injuries were caused by the exaggerated birth maneuvers described and demonstrated at trial. In contrast, the defense was silent on the issue of causation where plaintiff’s life-altering injuries were sustained during a routine labor and vaginal delivery following a second normal pregnancy of this healthy mother. The unexplained absence at trial of Lenox Hill’s first year resident who was present for the delivery coupled with its lack of any explanation of a non-negligent cause of the rare pelvic injury are additional factors that the jury could not fail to consider in reaching its conclusion. r B. Plaintiffs Established the Departure from Accepted Medical Practice in the Dosage of Epidural Block Administered During Delivery. Justice Edmead correctly assessed the evidentiary foundation for the theory of liability arising out of the dosage of epidural block administered: 13 As to the jury’s finding regarding the dosage of the epidural block, the evidence presented at trial provided sufficient basis for a rational person to logically reach the same conclusion as the jury. Contrary to LHH’s contention, Dr. Plotnick testified that while the doses were “standard” doses, it was “Based upon height, weight and criteria the anesthesiologist used in her, it lowered her blood pressure. There is a least one notation of the heart rate going down, and that needed to be reversed, so it was too dense of [plaintiff] at that time.” The jury is entitled to credit any portion of the expert witnesses testimony as it chooses (Mejia v JMM Audubon, Inc,. 1 AD3d 261, 767 NYS2d427 [1st Dept 2003] (the jury “was entitled to accept or reject either expert’s position in whole or in part”)). (emphasis included, A-17a-18a) *** [T]he Court (Lobis, J.), as affirmed on appeal, previously cited to Dr. Plotnick’s opinion which “references ‘the unusually dense epidural block’ as a contributing factor to the injury…” and such evidence was presented to the jury. Therefore, it cannot be said that the jury’s verdict on the issue of the epidural block was against the weight of the evidence. (A 18-a) It is respectfully submitted that the First Department further overlooked the fact that the dosage was just too dense for her, and was a contributing factor, because the combined anesthetic and narcotic interfered with the pain and pressure which is an impetus for the natural urge to push. CONCLUSION Maria Bustos, a vigorous, young mother, presented at Lenox Hill Hospital for what should have been a routine labor and vaginal delivery. Instead, she suffered immediate grievous orthopedic injuries during the performance of hyper flexion abduction maneuvers, for which she has undergone four separate surgical procedures 14 leaving her physically disabled and in constant pain, and which have profoundly impacted every aspect of her life. Defendants have never presented a non-negligent explanation for the injuries. It is hornbook law in New York that in the absence of any indication that substantial justice has not been done, a litigant is entitled to the benefit of a jury verdict in her favor. The decisions on admissibility and sufficiency of expert testimony should remain within the sound discretion of the trial Justice who viewed the witness and can best assess and make those determinations within the context of the proceedings. Not every expert opinion should be reappraised on appeal as a matter of course nor should every case be retried in the Appellate Division. Justice Edmead made even-handed rulings and ultimately saw this case as a classic war of the experts, refusing to consider either expert’s opinion as speculative or conclusory. The jury resolved the conflict in expert testimony and defendant received an eminently fair trial without reversible error. The order of the Appellate Division, First Department dated August 1, 2011, from which plaintiffs appeals, setting aside the jury verdict and dismissing the complaint, should be reversed and the order of the Supreme Court (Hon. Carol Edmead), dated July 19. 2011 and entered July 26, 2011 reinstated. Respectfully submitted, Hill & Moin LLP _______________________ Cheryl R. Eisberg Moin, Esq. Attorneys for Plaintiffs-Appellants MARIA PILAR BUSTOS and CESAR BUSTOS 2 Wall Street –Suite 301 New York, New York 10005 212-668-6000