Michelle Yung, Plaintiff, v. LLC MILAN LASER CORPORATE LLC (2026)

The following e-filed documents, listed by NYSCEF document number (Motion 002) 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62 were read on this motion to/for JUDGMENT - SUMMARY.

BACKGROUND

Plaintiff commenced this action to recover for injuries sustained after being burned while receiving pulse light rejuvenation and laser treatment for hair removal on March 13, 2021 from Defendants Milan Laser New York, LLC, and Milan Laser Corporate LLC ("Defendants"). Plaintiff asserts claims of negligence, violation of New York Education Law § 6512, negligence per se, res ipsa loquitur, fraudulent misrepresentation, breach of contract, and deceptive trade practices pursuant to General Business Law § 349. In the bill of particulars, Plaintiff also alleges that Defendants violated New York Education Law §§ 6530, 6521, and 6522, pertaining to the alleged medical misconduct; General Business Law Article 27 §§ 401, 406, 407, and Article 22-A § 349, relating to deceptive practices and licensing for esthetic services; and 19 NYCRR §§ 162.2 and 160.27 in connection to "Appearance Enhancement Regulations" for esthetic services licensing.

Defendants move for summary judgment and dismissal of Plaintiff's Complaint, arguing that Defendants did not deviate from the generally accepted standard of care, that Defendants did not fail to obtain adequate informed consent from Plaintiff, that they did not negligently hire or train personnel, and that they did not proximately cause Plaintiff's injuries. While Defendants state that they do not offer medical care, Defendants assert that Plaintiff's negligence claims should be treated as medical malpractice claims and submit an expert's report from dermatologist Dr. Stephanie Hu in support of their motion.

LEGAL STANDARD

To prevail on a motion for summary judgment pursuant to CPLR § 3212, the movant must tender sufficient evidence to show the absence of any material issue of fact and the right to entitlement to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320, 323 [1986]). Once the movant submits competent proof demonstrating that there is no substance to its opponent's claims and no disputed issues of fact, the opponent, in turn, is required to "lay bare [its] proof and come forward with some admissible proof that would require a trial of the material questions of fact on which [its] claims rest" (Ferber v Sterndent Corp., 51 NY2d 782, 783 [1980]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted (see Dauman Displays, Inc. v Masturzo, 168 AD2d 204, 205 [1st Dept 1990]).

DISCUSSION

A. Negligence

As an initial matter, Defendants assert that Plaintiff has failed to raise a triable issue of fact because Plaintiff's claim sounds in medical malpractice and Plaintiff failed to submit an expert affidavit or affirmation attesting to a departure of medical care and causation in opposition to Defendants' motion, which is required in a medical malpractice action (see Kaffka v New York Hospital, 228 AD2d 332 [1st Dept 1996]). However, the First Department has expressly held that actions involving laser hair removal are not medical malpractice actions because "laser hair treatment [is] not medical in nature and [does] not involve specialized knowledge of medical science or diagnosis and instead seeks to hold [defendants] liable for failing to exercise reasonable care" (Berkowitz v Equinox One Park Avenue, Inc., 181 AD3d 436 [1st Dept 2020] [internal quotations omitted]).

Given the First Department's holding, this Court finds that this matter does not involve medical malpractice, and therefore, no expert affirmation or affirmation attesting to a departure of medical care and causation in opposition to Defendant's motion is necessary. Defendant's motion to dismiss on this ground is denied.

To establish negligence, a plaintiff must demonstrate that the defendant owed a duty of care, breached that duty, and that such breach was a proximate cause of the plaintiff's injuries, resulting in damages (Strauss v. Belle Realty Co., 65 NY2d 399 [1985], Sheehan v. City of New York, 40 NY2d 496, 501 [1976]). Where a plaintiff cannot establish that a defendant owed a duty or that such duty was breached in a manner that proximately caused the alleged injury, summary judgment is inappropriate (Pulka v. Edelman, 40 NY2d 781 [1976]).

Defendants argue that the affirmation from their expert doctor, Dr. Stephanie Hu, establishes that they did not breach any duty owed to Plaintiff because the laser therapy was performed in accordance with the applicable standard of care. Dr. Hu opines that Defendants performed "test spots" on Plaintiff prior to the treatment, to ensure Plaintiff did not have poor skin reactions to the treatment (NYSCEF Doc. No. 42, Hu Affirmation, at 5-6). Dr. Hu further opines that the settings for the lasers used for Plaintiff were kept within a normal range, and that there was no inadequate lighting in the room to disrupt the technician's vision while performing the procedure on Plaintiff (id. at 6-7).

With respect to Plaintiff's post-treatment care, Dr. Hu states that Defendants advised Plaintiff on how to care for her hives and scabs, and to apply antibiotic ointment on any burned areas (id. at 6-7). Additionally, Defendants also called to schedule a two-week follow-up appointment (id.). Ultimately, Dr. Hu opines that "the cause for [the injuries] is unknown and can occur even if the defendant took every precaution" (id. at 9).

Plaintiff principally alleges that she told Defendants that she was taking Accutane, and that after disclosing such information, specifically asked if the medication would pose any problem for laser hair removal treatment. Plaintiff testified in her deposition that she was told the Accutane would not be an issue (NYSCEF Doc. No. 44, Plaintiff EBT, 30-31). Moreover, Plaintiff testified that she was told that a doctor would be available and provide prescriptions as needed, when in actuality, a doctor was not on-site (id., at 36). Plaintiff stated that the "test spot" was brief, and only a minute passed between that and commencing the full treatment (id. at 42-43). Plaintiff further stated that she informed the laser technician of severe pain during treatment but that the technician did not stop or take any breaks to reassess the settings (id. at 82-87).

Additionally, Christine Lombardo, Defendants' sales manager, testified in her deposition that she was not informed of any contraindications for laser hair removal (NYSCEF Doc. No. 45, Lombardo EBT, 45). Ms. Lombardo stated that she reviewed Plaintiff's health history form prior to her treatment, and claims that she did not know that Accutane is a contraindication for laser hair removal (id.). Ms. Lombardo also confirmed that no doctor was on site at the location where Plaintiff was treated at any time (id. at 71).

Plaintiff's and Ms. Lombardo's depositions have raised multiple issues of fact as to whether Defendants were negligent in failing to recognize the contraindications related to Plaintiff's medication, in not stopping treatment given her expressed pain, and in not waiting a sufficient period after administering the "test spot." Moreover, while the person administering the laser treatment was not a doctor, Plaintiff states that Defendants misrepresented that there was a doctor on-site able to administer prescriptions and intervene in the case of an emergency, creating questions of fact as to the whether Defendants and their staff were fully qualified to perform the procedure and services that they offer, and whether Plaintiff was fully informed of all of the risks prior to her consent. As such, summary judgment is inappropriate.

B. New York Education Law §§ 6530, 6521, and 6522

The complaint and bill of particulars asserts that Defendants violated New York Education Law §§ 6530, 6521, and 6522, which relate to medical malpractice. Defendants assert that these claims should be dismissed as they involve medical malpractice. Plaintiff do not oppose this portion of Defendants' motion.

Given the First Department's holding that laser hair treatment is not a medical treatment (see Berkowitz, 181 AD3d at 436), and Plaintiff's apparent concession that this case does not involve a medical malpractice claim, Defendants' motion for summary judgment is granted as to these statutes.

C. General Business Law §§ 401, 406, 407 and 19 NYCRR §§ 162.2 and 160.27

Defendants also argue that Plaintiff's claims based on the alleged violations of esthetic licensing statutes, General Business Law Article 27 §§ 401, 406, 407, and 19 NYCRR §§ 162.2 and 160.27 should be dismissed. Defendants assert that Dr. Hu's report states that "within a reasonable degree of medical certainty[,] the technician who performed the laser treatment on March 13, 2021 was licensed to do so" (NYSCEF Doc. No. 42, Expert Report of Dr. Hu, at 8). Defendants also point to Ms. Lombardo's deposition, in which she stated that the technician who performed Plaintiff's procedure "received training for becoming an authorized Candela practitioner" (NYSCEF Doc. No. 45, Lombardo EBT, 25:23-24). However, beyond the statements by Dr. Hu and Ms. Lombardo, Defendants do not provide any evidence of the technician's license, training or experience. Accordingly, Defendants have failed to establish an entitlement to summary judgment based on the esthetic licensing statutes.

D. Unfair, Deceptive, or Abusive Business Practices: General Business Law § 349

General Business Law § 349 prohibits deceptive acts and practices in the conduct of any business when such act "causes or is likely to cause substantial injury which is not reasonably avoidable and is not outweighed by countervailing benefits to consumers or to competition." An act or practice is abusive when "it materially interferes with the ability of a person to understand a term or condition of a product or service" (General Business Law § 349 [a][2][ii]).

In a cause of action under General Business Law § 349, "[a] plaintiff must allege that: (1) the defendant's conduct was consumer-oriented; (2) the defendant's act or practice was deceptive or misleading in a material way; and (3) the plaintiff suffered an injury as a result of the deception" (Himmelstein, McConnell, Gribben, Donoghue & Joseph, LLP v Matthew Bender & Company, Inc., 37 NY3d 169,176 [2021] [internal citations omitted]).

Defendants argue that they were not deceptive because Plaintiff herself testified that she did not expect that the treatments would be performed by a medical doctor (NYSCEF Doc. No. 44, Plaintiff's EBT, 36:34-37:6). However, Plaintiff states that she relied upon Defendants' statements during her initial consultation that a doctor would be available if anything went wrong during the procedure, and would prescribe medication as needed (id., 107:12-21).

In light of the conflicting testimony, there are issues of material fact as to whether Defendants' statement that a doctor was available is a deceptive business practice under General Business Law § 349, as well as Defendants' failure to advise Plaintiff of the potential risks, especially as related to contradictions with Accutane. Defendants' motion for summary judgment as to this provision is denied.

E. Negligence Per Se, Res Ipsa Loquitur, Fraudulent Misrepresentation, Breach of Contract.

Defendants' motion does not address Plaintiffs' claims of negligence per se, res ipsa loquitur, fraudulent misrepresentation, and breach of contract. As such, Defendants' motion for summary judgment as to these claims is denied.

Accordingly, it is hereby

ORDERED that the summary judgment motion by defendants Milan Laser New York, LLC and Milan Laser Corporate LLC is granted as to the alleged violations of New York Education Law §§ 6530, 6521, and 6522, and such claims are now dismissed, and is denied in all other respects.

The foregoing constitutes the decision and order of the Court.

DATE 7/9/2026

LESLIE A. STROTH, J.S.C.

Leslie A. Stroth, J.