The following papers numbered 1 to 3 read on this motion dated August 8, 2022.

Motion by defendant, Armando Lascano, D.P.M., for summary judgment (CPLR 3212) and dismissal of plaintiffs' complaint, which alleges medical (podiatric) malpractice and loss of services,^[FN1] is granted.^[FN2] Overall, the crux of plaintiffs' claim is that Dr. Lascano failed to properly perform a surgery on the right ankle (i.e., medial talar dome) of plaintiff, Dayana Pepen (Dayana), to correct her osteochondritis dissecans (OCD). The injuries claimed by plaintiffs include, inter alia, permanent right ankle neuropathy, pain syndrome and decreased range of motion. The initial burden is on Dr. Lascano to make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 320 [1986].) If he does, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial (Alvarez, 68 NY2d 320), and denial of summary judgment.

It should be noted that plaintiffs failed to properly and timely serve defendant, Thomas Franchini, D.P.M., and consequently, plaintiffs' direct claims against Dr. Franchini were dismissed by Order dated November 21, 2014. And on November 16, 2016, Dr. Lascano commenced a third-party action against Dr. Franchini asserting claims sounding in contribution and indemnification. It should also be noted that there is a discrepancy between Dr. Lascano and Dr. Franchini as to who was the lead surgeon for the surgical procedure on September 13, 2011. According to the operative report, Dr. Lascano was the surgeon, and Dr. Franchini was the assistant. This discrepancy may not be a material issue if, as Dr. Lascano alleges, there was no negligence with respect to the surgical procedure itself, regardless of who performed it. In support of the motion is an expert affidavit by Dr. Joseph Larsen, who is board certified in foot surgery, and reviewed the medical records, deposition testimony of the parties and non-parties, and conducted an independent medical exam of Dayana. Dr. Larsen opines that regardless of which podiatrist treated Dayana pre-operatively or post-operatively, or which podiatrist performed the surgery, that all care and treatment complied with the applicable standards of podiatric care and did not cause any injury to Dayana. According to Dr. Larsen, Dayana was properly diagnosed with OCD of the medial talar dome with a loose fragment, and after conservative treatment was properly initiated and concluded, an operative treatment was properly recommended.

Dr. Larsen opines that the podiatric surgeon's selection and performance of a bone marrow stimulation through an arthroscopic technique was also entirely appropriate. He further opines that Dr. Lascano and Dr. Franchini were qualified under section 7010 of the New York Education Law to perform this surgery. According to Dr. Larsen, the surgical procedure did not involve the tibia and therefore did not qualify as an ankle surgery, which would have required podiatric standard ankle surgery privilege or podiatric advanced ankle surgery privilege under section 7010 of the New York Education Law.

Dr. Larsen notes that when Dayana presented with post-operative complaints, Dr. Lascano's post-operative care (e.g., pain relief/anti-inflamatory medication and an MRI) was in accordance with the standard of care. According to Dr. Larsen, an MRI of Dayana's right ankle revealed that the OCD persisted despite the appropriate surgical procedure, and this is not an indication of any negligence, but is reflective of the difficulties in treating OCD and its resistance to surgery. Dr. Larsen notes that up to 20% of patients do no achieve correction due to OCD's resistance to treatment. He goes on to note that his opinion is corroborated by Dayana's subsequent course of treatment, in which she underwent another operative treatment on August 13, 2012, at (non-party) Montefiore Medical Center. This surgery was performed by (non-party) Dr. Kulsakdinum; however, it did not correct the OCD, as demonstrated by an MRI taken on December 18, 2013 — further proof of OCD's resistance to treatment. Based on the aforementioned, the Court is satisfied that Dr. Lascano has met his burden for summary judgment, (Zuckerman v City of NY, 49 NY2d 557 [1980]; Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]), which now shifts to plaintiffs to demonstrate that issues of fact exist to warrant a trial on this issue.

In opposition, plaintiffs provide an expert affirmation^[FN3] by Dr. Lawrence P. Horl, a board certified podiatric surgeon, who does not challenge the need for the September 13 surgery, nor does he claim any deficiencies with regards to the post-operative care. Dr. Horl limits his arguments to two areas, that Dr. Lascano was not qualified to perform the surgery, and that the surgery was improperly performed. Dr. Horl's opinion that Dr. Lascano was not qualified to perform the surgery is based on Dr. Lascano's deposition testimony. At his deposition, Dr. Lascano not only denied performing the surgery, but when asked whether he was qualified to perform the surgery, Dr. Lascano answered "no." According to Dr. Lascano's deposition testimony, Dr. Franchini is certified in arthroscopic surgery, and it was Dr. Franchini who performed the surgery. However, neither Dr. Lascano's testimony, nor Dr. Horl affidavit addresses Dr. Larsen's opinion that the surgical procedure in question did not involve the tibia and therefore did not qualify as an ankle surgery, which would have required podiatric standard or advanced ankle surgery privilege under section 7010 of the New York Education Law. In addition, this discrepancy does not resolve whether the surgery was improperly performed, in other words that there was a departure, and that the departure was the proximate cause of Dayana's injuries. (Amsler v Verrilli, 119 AD2d 786 [2nd Dept 1986].) Dr. Horl must still explain how the surgery was improperly performed, which may then explain his initial opinion [*2]that the individual who performed the surgery was not qualified to do same.

According to Dr. Horl, the basis for his opinion that the September 13 surgery was not properly performed is because the operative report "is inadequate and not clear" for the following reasons: operative report mentions "drilling" without any description of location or amount of drilling; it makes no mention of overlying cartilage except that "cartilaginous remnants" were removed; and it fails to mention the size of the OCD lesion. The mere fact that the operative report is inadequate or not clear, in and of itself, does not establish that a departure occurred, and Dr. Horl's reasoning provides no further insight. For example, Dr. Horl does not specifically allege that the drilling was done improperly, either by drilling in the wrong place or removing a wrong amount, nor does he state where the correct location should have been, or what amount should be removed. In addition, Dr. Horl does not specifically allege that there was a departure with respect to how the cartilage was removed, or how it should have been handled. As to the size of the OCD lesion, Dr. Horl does not specifically allege that a departure occurred in the treatment of the lesion, nor does he describe the appropriate standard of care as it relates to the lesion's size.

Dr. Horl also mentions that there were no photos of the surgery provided, but fails to correlate this with a specific departure(s). He also notes that during Dr. Kulsakdinum's surgery on August 13, 2012, several prolene stitches placed during the September 13 surgery were removed. Dr. Horl states that Dr. Kulsakdinum's surgery "failed because he was trying to fix the damage Defendants created." However, Dr. Horl does not specifically allege that it was a departure to leave several prolene stitches, nor does he in any way explain the "damage" created by defendants. In addition, Dr. Kulsakdinum's operative report makes no mention of "damage," and his measurement of the lesion (i.e., 1 cm x 1 cm) revealed that its size appears to have decreased from the MRI taken on July 15 (i.e., 1.4 cm x .7 cm). A doctor is not liable in negligence merely because a treatment, which the doctor as a matter of professional judgement elected to pursue, proves ineffective (Nestorowich v Ricotta, 97 NY2d 393 [2002]).

In opposing Dr. Lascano's motion, Dr. Horl was obligated to address the specific assertions made by Dr. Larsen, (Lowe v Japal, 170 AD3d 701 [2nd Dept 2018]), and set forth a specific departure(s) that proximately caused Dayana's injuries. (Amsler, 119 AD2d 786.) Instead, Dr. Horl's affirmation is conclusory, speculative and does not appear to be supported by the record, and as such, it is insufficient to raise triable issue of fact. (Wagner v Parker, 172 AD3d 954 [2nd Dept 2019].) Therefore, Dr. Lascano's motion is granted, the action is dismissed as against Dr. Lascano, and the clerk is directed to enter judgment accordingly. Dr. Lascano is directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.