COZINE v. Lev Paukman, doing business as Paukman Bioage Clinic, appellant. (2025)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and lack of informed consent, etc., the defendant Lev Paukman, doing business as Paukman Bioage Clinic, appeals from an order of the Supreme Court, Kings County (Genine D. Edwards, J.), dated September 24, 2023.  The order, insofar as appealed from, denied that defendant's motion for summary judgment dismissing the complaint insofar as asserted against him or, in the alternative, to preclude certain testimony of the plaintiff's expert witness and for related relief.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the motion of the defendant Lev Paukman, doing business as Paukman Bioage Clinic, which was for summary judgment dismissing the complaint insofar as asserted against him is granted, and those branches of that defendant's motion which were, in the alternative, to preclude certain testimony of the plaintiff's expert witness and for related relief are denied as academic.

The plaintiff, individually and as the administrator of the decedent's estate, commenced this action, inter alia, to recover damages for medical malpractice and lack of informed consent against the defendant Lev Paukman, doing business as Paukman Bioage Clinic (hereinafter the defendant), among others.  The defendant had treated the decedent with testosterone therapy.  The defendant moved for summary judgment dismissing the complaint insofar as asserted against him or, in the alternative, to preclude certain testimony of the plaintiff's expert witness and for related relief.  In an order dated September 24, 2023, the Supreme Court, among other things, denied the defendant's motion.  The defendant appeals.

A defendant physician seeking summary judgment dismissing a medical malpractice cause of action must make a prima facie showing either that there was no departure from good and accepted medical practice or that the plaintiff was not injured by any such departure (see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d 1170, 1171, 216 N.Y.S.3d 711;  Martinez v. Orange Regional Med. Ctr., 203 A.D.3d 910, 912, 165 N.Y.S.3d 573).  If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden (see Rivera v. Stand Up MRI of Elmhurst, P.C., 235 A.D.3d 918, 919, 227 N.Y.S.3d 689;  Quinones v. Winthrop Univ. Hosp., 230 A.D.3d at 1171, 216 N.Y.S.3d 711).  While generally summary judgment is not appropriate on a medical malpractice cause of action where the parties adduce conflicting medical expert opinions, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact (see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d at 1171–1172, 216 N.Y.S.3d 711;  Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 A.D.3d 896, 898, 184 N.Y.S.3d 800).

Here, the defendant demonstrated, prima facie, that he did not deviate from good and accepted medical practice in his treatment of the decedent through the submission of expert medical opinions and the decedent's medical records (see Avgi v. Policha, 232 A.D.3d 838, 840, 222 N.Y.S.3d 597;  Quinones v. Winthrop Univ. Hosp., 230 A.D.3d at 1172, 216 N.Y.S.3d 711).  In opposition, the plaintiff's expert opinion was speculative and failed to raise a triable issue of fact (see Avgi v. Policha, 232 A.D.3d at 840, 222 N.Y.S.3d 597;  Ratner v. McNeil–PPC, Inc., 91 A.D.3d 63, 76–78, 933 N.Y.S.2d 323).  Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the medical malpractice cause of action insofar as asserted against him.

Furthermore, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging lack of informed consent insofar as asserted against him by submitting evidence that he properly informed the decedent about the treatment and the reasonably foreseeable risks (see Zapata v. Buitriago, 107 A.D.3d 977, 979, 969 N.Y.S.2d 79;  Johnson v. Staten Is. Med. Group, 82 A.D.3d 708, 709, 918 N.Y.S.2d 132).  In opposition, the plaintiff failed to raise a triable issue of fact (see Zapata v. Buitriago, 107 A.D.3d at 980, 969 N.Y.S.2d 79).

In light of our determination, those branches of the defendant's motion which were, in the alternative, to preclude certain testimony of the plaintiff's expert witness and for related relief have been rendered academic.  The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against him.

DUFFY, J.P., BRATHWAITE NELSON, WARHIT and TAYLOR, JJ., concur.