The following papers were considered in connection with the defendants' motion for summary judgment on the issue of liability:

Notice of motion, affidavit, exhibits A — R1

Affirmation in opposition, exhibits 1 — 92

Reply3

The plaintiff commenced this action to recover damages for alleged medical malpractice arising out of a course of treatment for laser hair removal administered by the defendants. Plaintiff contends that the treatments were negligently performed, resulting in various skin conditions including hyperpigmentation, dermatographism, xerosis (dry skin) and urticaria (hives). The defendants now move for summary judgment pursuant to CPLR 3212 on the issue of liability. The [*2]plaintiff opposes the motion.

The plaintiff, then 38 years-old, underwent a series of five "full body" laser hair treatments with the defendants commencing October 29, 2011, and ending on March 27, 2012. The treatments were administered by a nonparty technician, Olympia Bajdechi, who was employed by the defendants.

The defendants' records indicate that the plaintiff tolerated the procedures well, and that she first complained of red spots in her bikini area on January 5, 2012, on her fourth treatment by the defendants.

On February 7, 2012, plaintiff sought treatment for dry, itchy skin from her primary care physician, and was referred to Dr. Nelson, a dermatologist, who examined the plaintiff on February 8, 2012. Dr. Nelson, according to his treatment records which are submitted by defendants on the motion, recorded that plaintiff complained of itching and hives. He diagnosed dry skin and dermatographism.^[FN1] The plaintiff was not advised to discontinue laser therapy, and in fact received another treatment from the defendants on February 21, 2012.

On the plaintiff's next scheduled appointment with Dr. Nelson, on February 27, 2012, Dr. Nelson noted in his records that the plaintiff's hives were not related to the laser treatments. Further, he recorded that stool samples taken on the plaintiff's earlier visit tested "positive" for the presence of a parasite, D. Fragilis. Dr. Nelson prescribed medication for the parasite. On a further visit to Dr. Nelson, on March 20, 2012, yet another parasite, E. histolytica, was detected.

Dr. Nelson referred the plaintiff to Dr. Forni, who examined the plaintiff on April 19, 2012. He found only a mild residual itch, no hives, and some dermatographism. Dr. Forni noted that all parasitic conditions had resolved. Plaintiff had no further treatment with Dr. Forni. The affidavit of Dr. Forni dated August 17, 2015, which is submitted by the defendants on the present motion, states that the plaintiff made no complaint of hyperpigmentation while under his care.

On May 8, 2012, and May 24, 2012, plaintiff was treated by a third physician, Dr. Deener, for complaints of itchy skin and rashes. The affidavit of Dr. Deener dated August 8, 2015, submitted by the defendants, avers that he found dermatographism and hives on his examination on May 8, 2012. Dr. Deener notes that he considered, and ruled out, laser treatments as the cause of plaintiff's complaints. Instead, he believed that an autoimmune process was the cause of the plaintiff's symptoms, noting that a positive CU index provided possible evidence of a connection between the plaintiff's skin condition and an autoimmune reaction. Dr. Deener concludes in his affidavit that the laser treatment was not the cause of the plaintiff's complaints.

On May 6, 2015, plaintiff was examined by Dr. Chwalek for dark spots which she alleged had occurred subsequent to the laser treatments rendered by the defendants. His unsworn report noted only "very light" pink-hyperpigmented macules on the plaintiff's left inner thigh and mid-back. Dr. Chwalek does not set forth an opinion that this condition was casually related to the laser treatments.

In support of the motion, the defendants submit the affidavit of Dr. Peter Lombardo, a dermatologist, who examined the plaintiff on March 18, 2015. He opines that the laser hair removal was appropriately performed and never contraindicated, noting that none of plaintiff's three treating physicians casually related the plaintiff's complaints to her laser treatments. He observed mild [*3]hyperpigmentation, which, in his opinion, was caused by the plaintiff's dermatographism, and not related to the defendants' laser treatments.

In opposition, the plaintiff submits, inter alia, her own unsworn deposition testimony, the unsworn deposition testimony of Olympia Bajdechi and defendant Marlene Galizi,^[FN2] and the unsworn and unaffirmed report of Dr. Chwalek. There is no competent opinion from a medical expert.

Plaintiff argues that her "gravest" symptom is hyperpigmentation, which did not exist prior to her laser surgery treatments. She maintains that the deposition testimony raises issues of fact as to medical malpractice, in that laser treatments were performed even after adverse skin conditions (hyperpigmentation, severe itchiness and dermatographism) had occurred; that the defendant physician failed to properly supervise the technician; and that the defendant physician failed to personally examine the plaintiff after hyperpigmentation occurred.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice, and evidence that the departure was a proximate cause of injury or damage. (See Thompson v Orner, 36 AD3d 791[2d Dept. 2007]). On a motion for summary judgment, the defendant physician has the burden of establishing either the absence of any departure from good and accepted medical practice, or the absence of injury as a result of any alleged malpractice. (See Williams v Sahay, 12 AD3d 366, 368 [2d Dept. 2004]). If the defendant establishes a prima facie case, in opposition the plaintiff must generally submit a physician's affidavit attesting to the defendant's departure from accepted practice, and attesting that the departure was a competent producing cause of the injury. (Rebozo v. Wilen, 41 AD3d 457 [2d Dept. 2007]). Conclusory and unsupported allegations not supported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; DiMitri v Monsouri, 302 AD2d 420, 421 [2d Dept. 2003]).

The defendants, who submitted the expert affidavit of a qualified physician, demonstrated the absence of any issue of fact and established their entitlement to judgment as a matter of law. Dr. Lombardo established the absence of any departure by the defendants, and in addition, established that treatment was not contraindicated.

Conspicuously missing from the plaintiff's opposition is any competent expert opinion raising an issue of fact as to malpractice. (Ling Fei Sun v. City of New York, 99 AD3d 673, 676 [2d Dept. 2012] ["Since a medical diagnosis is outside the experience and knowledge of an ordinary lay person, the plaintiff was required to submit an expert medical opinion in opposition." [citations omitted].) The absence of a medical affidavit is generally fatal to the plaintiff's case, although it is not necessarily so in every case. (See Solano v. Ronak Med. Care, 114 AD3d 592, 593 [1st Dept. 2014] [recognizing that "[w]hile an expert medical opinion is generally required to defeat a summary judgment motion in a medical malpractice case," the deposition testimony of the decedent's daughter was sufficient to create a triable issue of fact, where she described symptoms which the decedent exhibited to the defendant physician, which were within the parameters [*4]identified by defendant physician's own expert as warranting referral to an otolaryngologist]).

Plaintiff has not raised any issue of fact by the submission of her own deposition testimony, or that of the defendant physician or the defendants' technician. The plaintiff has not pointed to any admission made by the defendants, or any other evidence, which would establish causation of any of the conditions complained of by the plaintiff. The fact that the plaintiff's skin conditions first manifested while the plaintiff was receiving laser therapy does not establish either causation, or that further laser therapy was contraindicated. This is especially so since there is evidence that plaintiff's skin condition may have been due to an autoimmune response or a parasitic infection. Significantly, none of the plaintiff's three treating physicians has ever indicated that the plaintiff's complaints were caused by the laser therapy, or that the therapy should have been discontinued when plaintiff's symptoms arose.

Further, while plaintiff asserts that the defendant physician should have personally examined the plaintiff when symptoms arose, plaintiff has not submitted any medical opinion that the failure to do so constituted a departure from good and accepted medical care. Moreover, as the plaintiff was being examined and treated by her own physicians for her symptoms, it is not self-evident that the defendant physician should have conducted her own examination. In addition, even if the plaintiff had submitted competent medical evidence that the failure to examine the plaintiff was a departure from good and accepted medical practice, in the absence of any competent proof of causation, plaintiff has failed to raise an issue of fact that this alleged departure resulted in any injury to the plaintiff.

Accordingly, based upon the foregoing, it is hereby

ORDERED that the complaint is dismissed.

This constitutes the decision and order of the Court.