GENTILE v. Mary Ann Woody, Defendant. (2025)

Order, Supreme Court, New York County (Kathy J. King, J.), entered October 2, 2023, which, insofar as appealed from, granted defendants Dr. Bruce Katz doing business as Juva Skin and Laser Center Medispa and Jennifer Kramer's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

The motion court correctly found that plaintiff's expert, a urologist who owned a medical spa where cosmetic laser treatments were performed, was not qualified to opine on plaintiff's dermatological conditions and the treatments rendered by defendant Dr. Katz and his staff (see Lomax v. New York City Health & Hosps. Corp., 176 A.D.3d 483, 484, 110 N.Y.S.3d 110 [1st Dept. 2019];  Colwin v. Katz, 122 A.D.3d 523, 524, 997 N.Y.S.2d 383 [1st Dept. 2014]).  It was within the motion court's discretion to refuse to consider the supplemental affidavit of plaintiff's expert and a new affidavit from an assistant involved in plaintiff's subsequent treatment, filed in a reply affirmation to a cross-motion brought by plaintiff (see CPLR 2214[b]).  In any event, even if the submissions were considered, they are insufficient to create a question of fact.  Plaintiff cannot defeat defendants’ prima facie showing of entitlement to summary judgment with submissions in reply, which is what she attempted to do here (see Ostrov v. Rozbruch, 91 A.D.3d 147, 936 N.Y.S.2d 31 [1st Dept. 2012];  Schultz v. 400 Coop. Corp., 292 A.D.2d 16, 21, 736 N.Y.S.2d 9 [1st Dept. 2002]).  Substantively, numerous assertions by plaintiff's expert are either unsupported or contradicted by the record (see Browder v. New York City Health & Hosps. Corp., 37 A.D.3d 375, 376, 830 N.Y.S.2d 551 [1st Dept. 2007];  Wong v. Goldbaum, 23 A.D.3d 277, 279–280, 805 N.Y.S.2d 47 [1st Dept. 2005]).  Furthermore, they do not sufficiently address all of defendants’ expert's salient points, including that the hyperpigmentation suffered by plaintiff was the result of an inflammatory reaction to her skin condition and not caused by laser treatments, as shown by its occurrence on areas of the body not treated by defendants (see Pietroforte v. Belle Harbor Home of the Sages, Inc., 220 A.D.3d 628, 628–629, 197 N.Y.S.3d 220 [1st Dept. 2023];  Homan v. David Seinfeld, M.D., PLLC, 164 A.D.3d 1147, 1148, 82 N.Y.S.3d 413 [1st Dept. 2018]).

Plaintiff's argument that an expert affidavit was not required as to defendant Jennifer Kramer, since their claims against her were based on general negligence and not malpractice, is incorrect.  While Kramer was not a medical professional, the treatment was medical in nature, prescribed by Dr. Katz and overseen by the doctor and his staff (see Annunziata v. Quest Diagnostics Inc., 127 A.D.3d 630, 631, 8 N.Y.S.3d 168 [1st Dept. 2015]; Cullinan v. Pignataro, 266 A.D.2d 807, 808, 698 N.Y.S.2d 381 [4th Dept. 1999]).