Lev-Ary v. Manhattan Fertility Services LLC

Background

In 2014, Advanced Fertility Services, P.C. (AFS) surgically retrieved 18 oocytes from Larisa Lev-Ary. AFS froze 16 of them. The parties disputed whether the storage containers used were approved for oocyte storage, how the oocytes were labeled and stored, and whether AFS adequately monitored the liquid-nitrogen tanks.

AFS later transferred responsibility for the laboratory and frozen materials to Manhattan Fertility Services LLC and Legacy IVF LLC (collectively, MFS). During a 2016 visit, an MFS employee showed Lev-Ary her oocytes outside the cryopreservation tank. In 2021, a New Jersey fertility clinic thawed the oocytes and found that all 16 were degenerated and nonviable.

Lev-Ary’s amended complaint asserted negligence or gross negligence, medical malpractice, breach of bailment, and deceptive business practices. In opposing summary judgment, she stated that she was not pursuing the medical-malpractice claim against both defendants, the deceptive-business-practices claims against both defendants, or the bailment claim against AFS. The court therefore addressed the ordinary-negligence claims against both defendants and the bailment claim against MFS.

Ordinary Negligence Versus Medical Malpractice

The court applied New York law. It held that Lev-Ary’s claim against MFS concerned the alleged negligent removal of the oocytes from a freezer tank, which was ordinary negligence because storing retrieved oocytes was not medical treatment of a particular patient. The court reached the same conclusion for the claim against AFS concerning the act of freezing, or vitrifying, the oocytes. Although freezing followed a medical procedure and could precede another fertility treatment, the court concluded that freezing itself was not sufficiently linked to medical treatment of a particular patient to constitute medical malpractice.

Timeliness

The court held that the ordinary-negligence claims were timely under New York’s three-year limitations period. It reasoned that the claims became legally enforceable only when the oocytes were thawed in 2021 and their destruction could be established. The court emphasized that this conclusion did not create a general rule that a negligence claim begins only when a plaintiff discovers the injury. Rather, the claims accrued when all elements, including actual injury, could truthfully be alleged. The court noted that this happened to coincide with Lev-Ary’s discovery of the destruction.

Causation and Alternative Liability

The defendants argued that Lev-Ary could not prove causation because the oocytes might have been destroyed either during AFS’s freezing process or when MFS removed them from storage. The court rejected that argument at the summary-judgment stage. It held that Lev-Ary could proceed under the alternative-liability doctrine, which can apply when the conduct of a small group of possible defendants was tortious, only one caused the injury, and it is uncertain which defendant did so. Each defendant would have the opportunity at trial to show that it did not cause the oocytes’ destruction.

The court also found that Dr. Douglas Raburn’s expert report was admissible and reliable. The fact that he could not identify with certainty which event destroyed the oocytes did not make his opinion unreliable. The court left other possible challenges to his testimony for pretrial motions.

Res Ipsa Loquitur Theory

Res ipsa loquitur is a doctrine that can allow a jury to infer negligence from the occurrence of an event when specified conditions are met, including that the instrumentality causing the injury was under the defendant’s exclusive control. The court held that Lev-Ary could not satisfy that requirement because the oocytes were at different times in the possession of AFS, MFS, Lev-Ary, and other third parties. Even limiting the possible destructive events to AFS’s vitrification and MFS’s removal of the oocytes from storage, the oocytes were not under either defendant’s exclusive control.

Bailment

A bailment is an arrangement in which one party delivers personal property to another for a specific purpose. To establish breach of bailment under New York law, a plaintiff generally must show that the property was delivered in good condition and returned damaged. The court granted MFS summary judgment on this claim because Lev-Ary’s alternative negligence theory included the possibility that AFS destroyed the oocytes during vitrification, before MFS received them. That possibility prevented her from establishing that MFS received the oocytes in good condition.

Disposition

The court granted in part and denied in part both motions for summary judgment. It granted summary judgment for the defendants on Lev-Ary’s medical-malpractice, deceptive-business-practices, and bailment claims. It also granted summary judgment in part on the negligence claims, preventing Lev-Ary from advancing a res ipsa loquitur theory. The court denied summary judgment in all other respects on her ordinary-negligence claims. The parties were ordered to file a joint letter within one week stating their availability for a trial in February, March, or April 2026.