Peter Molinari and Marian Lyn Riordan as co-administrators of the Estate of Vincent Molinari, Deceased, Plaintiffs, v. PLLC (2026)

Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

NYSCEF Doc #s 288-303; 326-327 by Defs.

NYSCEF Doc #s 317-325 by Plaintiffs

Upon the foregoing cited papers  ¹ and after oral argument on April 15, 2026, pursuant to CPLR § 3212(b), the motion by Defendants Kevin Niksarli, M.D., Adonya Blair, O.D., and Manhattan Lasik Center, PLLC's ("Defendants") seeking summary judgment and dismissing Plaintiffs' complaint is GRANTED.²

BACKGROUND

Plaintiff commenced this medical malpractice and lack of informed consent action on May 23, 2017, arising from ophthalmologic treatment provided to decedent Vincent Molinari.³ Plaintiff alleges that on or about April 1, 2014, Mr. Molinari sought refractive surgery from Defendants, who negligently performed a photorefractive keratectomy (PRK) on or about July 1, 2014.⁴ Plaintiff further alleges that the procedure was contraindicated due to decedent's alleged lymphoma, leukemia, diabetes, Crohn's disease, and chlamydia of the eye.⁵ Mr. Molinari passed away approximately six years later, on March 9, 2020.

STANDARD OF REVIEW

Summary judgment is a drastic remedy that should be granted only where no genuine issue of material fact exists. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). The Court's role is limited to determining whether triable issues exist remain and not to resolve factual disputes or assess credibility. See Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). All evidence must be viewed in the light most favorable to the nonmoving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

In medical malpractice actions, a defendant moving for summary judgment must establish, prima facie, either that there was no departure from good and accepted medical practice or that any alleged departure was not a proximate cause of the plaintiff's injuries. Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022). If the defendant meets this burden, the plaintiff must submit competent medical evidence to raise a triable issue of fact. Cerrone v. N. Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021).

It is well settled that a plaintiff opposing such a motion must submit an expert affidavit demonstrating both a deviation from accepted medical practice and that the deviation proximately caused the injury. Domaradzki v. Glen Cove OB/GYN Assocs., 242 AD2d 282 (2d Dept. 1997) citing Cerkvenik v. County of Westchester, 200 AD2d 703 (2d. Dept. 1994), Amsler v. Verrilli, 119 AD2d 786 (2d Dept. 1986). See also Rebozo v. Wilen, 41 AD3d 457 (2d Dept. 2007). The expert must specifically address the defense expert's opinions, and speculative or conclusory submissions are insufficient. Lowry v. McPherson, 245 AD3d 699 (2d Dept. 2026); DePasquale v. Staten Is. Univ. Hosp., 244 AD3d 1065, 1066 (2d Dept. 2025).

DISCUSSION

Defendants submitted the detailed, non-conclusory affirmation of Robert Cykiert, M.D., a board-certified ophthalmologist.⁶ Dr. Cykiert opined that the PRK procedure was performed properly, was within accepted standards of care, and that informed consent was appropriately obtained.⁷ He reviewed multiple contemporaneous medical records, which corroborated that decedent did not have any of the alleged contraindications. He further stated that relying on a patient's self-reported medical history is within the standard of care.

Dr. Cykiert also explained that the complications associated with contraindications—such as poor corneal healing—did not occur here, as confirmed by subsequent treating ophthalmologists.⁸ He concluded that the decedent experienced an excellent result from the PRK surgery and that subsequent issues were unrelated to the procedure. Moreover, decedent did not report having any of the alleged contraindications on a detailed medical history questionnaire provided by Defendants.⁹ Additionally, Dr. Cykiert opined that it was within the standard of care to rely on decedent's self-reported history.¹⁰ Defendants thus met their prima facie burden. See Cerrone, 197 AD3d at 450.

In Opposition, Plaintiff submitted an email from a Florida-based optometrist, Dr. Edward Boshnick.¹¹ The submission is inadmissible because it is not sworn or affirmed as required under CPLR § 2106; Great Lakes Ins. SE v. American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429 (1st Dept. 2024). Even if admissible, it lacks any reference to records reviewed, cites no evidence, and fails to address or refute the specific opinions of Defendants' expert.¹² For example, Plaintiff's expert fails to address Dr. Cykiert's opinion that it was within the standard of care to rely on decedent's self-reported medical history. Similarly, Plaintiff's expert fails to address that decedent's contemporaneous medical records did not show any contraindications for surgery. It does not address the standard-of-care issue, the lack of documented contraindications, or proximate causation. In short, Plaintiff's expert failed to cite to any medical records or any evidence in the record and failed to rebut any of the specific assertions by Defendants' expert. The submission is therefore speculative, conclusory, and insufficient to defeat summary judgment. DePasquale v. Staten Is. Univ. Hosp., 244 AD3d 1065, 1066 (2d Dept. 2025).

Plaintiff also submits the Affirmation of Co-Administrator Peter Molinari.¹³ However, this Affirmation is contradicted by his own deposition testimony and is insufficient to raise a triable issue. See Munoz v. Agenus, Inc., 207 AD3d 643, 645-646 (2d Dept. 2022); Krakowska v. Niksa, 298 AD2d 561 (2d Dept. 2002).

Finally, Plaintiff submits two attorney-prepared expert disclosures.¹⁴ Such anticipated expert testimony does not constitute admissible evidence and cannot defeat summary judgment. Velasco v. Green-Wood Cemetery, 48 AD3d 271 (1st Dept. 2008); Fritz v. Walden Playboys M.C. Inc., 217 AD3d 1293, 1298 (3rd Dept. 2023).

Plaintiff has failed to raise a triable issue of fact in response to Defendants' prima facie showing of entitlement to summary judgment. Accordingly, Defendants' motion for summary judgment is granted in its entirety, and the Complaint is dismissed with prejudice. The Clerk is directed to enter judgment and close the case.

This constitutes the Decision and Order of the Court.

Date: August 2, 2026

Brooklyn, New York

Hon. Patria Frias-Colón, J.S.C.

FOOTNOTES

1.   Plaintiff filed two sur-replies (denominated as Motions to Strike). These were filed without leave of the Court and were not considered. Gluck v. New York City Transit Auth., 118 AD3d 667 (2d Dept. 2014). NYSCEF Doc. #s 328-329.

2.   Defendant Mark Buchsbaum, M.D. was previously discontinued from the action with prejudice. NYSCEF Doc. # 18.

3.   NYSCEF Doc. # 1.

4.   NYSCEF Doc. #s 14-16.

5.   NYSCEF Doc. # 317. Defendant Mark Buchsbaum, M.D. was previously discontinued from the action with prejudice. NYSCEF Doc. # 18.NYSCEF Doc. # 1.NYSCEF Doc. #s 14-16.NYSCEF Doc. # 317.

6.   NYSCEF Doc. # 290.

7.    Id.

8.    Id.

9.    Id.

10.    Id.

11.   NYSCEF Doc. # 318 at 6. A substantively duplicative version of this email was also submitted at NYSCEF Doc. No. 324.

12.    Id.

13.   NYSCEF Doc. # 317 at 22.

14.   NYSCEF Doc. # 318.

Patria Frias-Colón, J.