The following e-filed documents, listed by NYSCEF document number (Motion 002) 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 were read on this motion to/for DISMISSAL AND JUDGMENT - SUMMARY.

Upon the foregoing papers and oral arguments having been heard, Defendant Stacey Lynn Silvers, M.D. ("Dr. Silvers") moves this Court, pursuant to CPLR 3212, for an order granting summary judgment dismissing the Plaintiff's complaint in its entirety, with prejudice, on the grounds that Plaintiff's claims are time-barred and that no genuine issues of material fact exist.

Plaintiff, Mark A. Graham ("Plaintiff") opposes the motion.^[FN1]

On April 16, 2015, Plaintiff presented to Defendant, Dr. Silvers, complaining of chronic sinus and breathing difficulties. Upon examination, Dr. Silvers observed nasal congestion, polyps, a deviated septum, and findings consistent with bilateral sinusitis. Treatment was initiated with a nasal steroid spray and a Medrol dose pack. On April 24, 2015, Dr. Silvers ordered a sinus CT scan, which revealed nasal septal deviation, presumed inflammatory changes affecting the paranasal sinuses and their respective drainage pathways, findings suggestive of polyp formation, and an odontogenic cyst associated with the right maxillary molar tooth, potentially representing a dentigerous or periapical cyst. On July 17, 2015, Dr. Silvers performed surgery on Plaintiff at the Gramercy Surgery Center, with a preoperative diagnosis of chronic sinusitis and nasal polyps. Plaintiff was discharged on the same day. His final office visit with Dr. Silvers occurred on August 6, 2015, followed by allergy testing on August 20, 2015.

Subsequently, on April 23, 2018, Plaintiff was treated for complaints of swelling on the right side of his face by Wall Street Dental Spa, and referred Plaintiff to an Oral Maxillofacial Surgeon, who noted a right-side mass. On April 24, 2018, an extraction was performed. Approximately one month later, on May 21, 2018, a CT scan, endoscopy and biopsy was performed, which revealed an aggressive carcinoma. Plaintiff presented to Memorial Sloan Kettering Cancer Center on June 7, 2019, and a biopsy confirmed the presence of an invasive carcinoma with squamous differentiation in the right maxillary mass. Chemotherapy commenced on June 20, 2018. An MRI performed on July 23, 2018, demonstrated improvement in the maxillary sinus lesion with local regional extension, with further improvement observed in a subsequent MRI in September 2018. On October 23, 2018, the plaintiff underwent extensive surgery by non-party Dr. Singh to remove their upper right maxilla and palate due to poorly differentiated squamous cell carcinoma. This procedure involved replacing the removed portion with a prosthesis that included gums and teeth, without which Plaintiff cannot eat, drink, and speak coherently.

On May 27, 2020, Plaintiff commenced the instant medical malpractice action, alleging that the Defendant departed from accepted standards of medical care by, inter alia, failing to order appropriate tests, failing to advise the Plaintiff of the medical significance of the odontogenic cyst detected on the CT scan, failing to refer the Plaintiff to other specialists, and/or otherwise failing to take appropriate measures to examine, test, diagnose, resect, or assess the Plaintiff's odontogenic cyst on or after April 2015, which resulted in the discovery of the maxillary sinus cancer in 2018, and a prolonged course of chemotherapy and radiation. Additionally, Plaintiff claims that the alleged 34-month delay in diagnosis led to more invasive and extensive disfiguring surgery, prolonged radiation therapy, chemotherapy, and deprived him of the opportunity to diagnose and treat either an early-stage cancer of the maxillary sinus or resect an odontogenic cyst before it transformed into cancer of the maxillary sinus.

Defendant now moves for summary judgment on the basis that action is time barred. Defendant argues that the action was commenced more than two and a half years after the statute [*2]of limitations governing medical malpractice lawsuits (CPLR 214-a). Defendant also argues that, in any event, CPLR 214-a[b], as amended, does not apply since that Plaintiff did not have cancer as alleged, and as a result, there could be no cause of action from an "alleged negligent failure to diagnose cancer . . . whether by act or omission."

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]) (emphasis added). "This burden is a heavy one and on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party" (Jacobsen v New York City HHC, 22 NY3d 824, 833 [2014]). A court will grant summary judgment only if, upon review of the record, the moving party sufficiently establishes the cause of action or defense at issue to warrant judgment in its favor as a matter of law (CPLR § 3212[b]; see also Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). "Summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a triable issue of fact or where the factual issue is arguable or debatable" (Int'l Customs Assocs., Inc. v Bristol-Myers Squibb Co., 233 AD2d 161, 162 [1st Dept 1996]). Where an opposing party shows "facts sufficient to require a trial on any issue of fact," summary judgment must be denied (Zuckerman, 49 NY2d at 562, quoting CPLR § 3212[c]).

Prior to January 31, 2018, the statute of limitations for a medical malpractice claim, including cases alleging the failure to diagnose cancer or a malignant tumor, required plaintiffs to file suit within two years and six months of the alleged failure to diagnose the cancer or malignant tumor (Ford v Lee, 203 AD3d 456 [1st Dept 2022]). Effective January 31, 2018, the statute of limitations for cases involving the delayed diagnosis of cancer or a malignant tumor was amended. CPLR 214-a, as amended, states in pertinent part that "[a]n action for medical malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that: . . . (b) where the action is based upon the alleged negligent failure to diagnose cancer or a malignant tumor, whether by act or omission, the action may be commenced within two years and six months of . . . (i) when the person knows or reasonably should have known of such alleged negligent act or omission and knows or reasonably should have known that such alleged negligent act or omission has caused injury, provided, that such action shall be commenced no later than seven years from such alleged negligent act or omission" (CPLR 214-a, as amended) (emphasis added).

CPLR 214-a(b), commonly referred to as Lavern's Law, applies to acts, omissions, or failures occurring on or after January 31, 2018. Moreover, this amendment "applies to acts, omissions, or failure occurring within 2 years and 6 months prior to the effective date of this act, and not before," which has been interpreted to mean that Lavern's Law applies to any matter in which the cause of action accrued on or after July 31, 2015 (Ford v Lee, 203 AD3d 456 [1st Dept 2022]).

Defendant argues that this action is time-barred and warrants dismissal, since it was commenced on May 27, 2020, two and a half years after the statute of limitations governing medical malpractice and approximately five years after the alleged negligent act or omission on July 15, 2015. In support of the requested relief, Defendant submits the expert affirmations of [*3]Dr. Ashutosh Kacker, a board-certified Otolaryngologist, Dr. Glenn Hanna, a board-certified Oncologist, and Dr. Elizabeth Lustrina, a board-certified Radiologist, all of whom opine to a reasonable degree of medical certainty that Plaintiff did not have cancer at the time of the Defendant's allegedly negligent treatment in 2015.

Dr. Kacker opines that Plaintiff's high-grade squamous cell carcinoma, diagnosed in May 2018, was not present during his treatment with Dr. Silvers from April to August 2015 based on a benign odontogenic cyst in 2015, as shown by imaging, and the absence of any mention of malignancy in dental records, reinforcing the benign nature of the cyst. According to Dr. Kacker, had the cancer been present in 2015, as Plaintiff claimed, the cancer would have metastasized to other organs or Plaintiff would have died of the cancer by May 2018 when he was diagnosed. Further, Dr. Hanna opines, based on the histology of Plaintiff's cancer, the aggressiveness of Mr. Graham's cancer, and based on a reasonable degree of medical certainty, he did not have this cancer during Dr. Silver's treatment in 2015.

Dr. Lustrin concurs that the CT scan from April 24, 2015, showed no radiological evidence of cancer, specifically noting the absence of bone erosion or destruction around the odontogenic cyst, in sharp contrast to the findings of the May 2018 CT scan. Dr. Lustrin interprets the 2015 scan as demonstrating a benign odontogenic cyst, without aggressive features indicative of malignancy.

Based on the expert affirmations submitted in support of the motion, Defendant has established prima facie entitlement to summary judgment as a matter of law that cancer was not present (and thus not subject to diagnosis, or "failure to diagnose") at the time Plaintiff was treated by Defendant from April to August 2015. Once the proponent of a summary judgment motion makes a showing of entitlement to dismissal by tendering evidence sufficient to demonstrate the absence of material issues of fact, the burden shifts to opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see also M'enzel v Plotnick, 202 AD2d 558 [2d Dept 1994]; Salamone v Rehman, 178 AD2d 638 [2d Dept 1991]).

Plaintiff, in opposition, argues that the discovery toll provided for by Lavern's Law is applicable to the facts in the case at bar. First, Plaintiff claims that he discovered Dr. Silvers' alleged negligence (i.e., the failure to remove the lesion and the failure to refer Plaintiff to a dental professional for management and removal of the "cyst") caused harm only once he was diagnosed with cancer on or about May 21, 2018 (i.e., when a biopsy taken then revealed for the first time that Plaintiff had cancer). Since Plaintiff's complaint was filed on May 27, 2020, within two years and six months of May 21, 2018, Plaintiff satisfies the first prong of CPLR 214-(a), as amended. In this regard, Plaintiff, in opposition, submits the affirmation of Dr. John Biedlingmaier, a board-certified Otolaryngologist; Dr. John R. Basile, a board-certified Oral and Maxillofacial Pathologist; and Dr. Joseph Helman, a board-certified Oral and Maxillofacial Surgeon.

Plaintiff's expert Dr. Biedlingmaier opines that Dr. Silvers deviated from accepted medical standards by failing to remove or properly refer Plaintiff's odontogenic lesion observed on the April 2015 CT scan. According to Dr. Biedlingmaier, the absence of lesion removal, confirmed by surgical pathology and Dr. Silvers' testimony, coupled with a lack of documented referral or follow-up instructions, deprived Plaintiff of crucial diagnostic information and resulted in a nearly three-year delay in cancer diagnosis, necessitating extensive treatment and [*4]worsening his prognosis. Dr. Basile, concurring with Dr. Biedlingmaier, focuses on the radiological and pathological evidence from 2015 to 2018, and identifies an odontogenic cyst on the 2015 CT scan. Dr. Basile concludes the 2018 tumor originated from the 2015 lesion. She notes that a biopsy in 2018 confirmed invasive carcinoma with squamous differentiation. She concludes that the 2018 tumor developed from the lesion present in 2015, indicating the cancer had been growing for some time, though she defers to an oncologist regarding the precise timing of its development.

Plaintiff's expert Dr. Helman further supports the progression theory, linking the 2015 odontogenic lesion to the 2018 cancer diagnosis, likely to originate from a jaw cyst than squamous cell carcinoma. Dr. Helman concludes that the 2015 lesion was likely an early-stage carcinoma that progressed to an aggressive malignancy by 2018. He opines that timely excision in 2015 would have resulted in a less extensive surgery, a higher cure rate, and a better prognosis, attributing the increased morbidity to the delay between July 2015 and May 2018.

The Court finds that the conflicting opinions of the experts raise triable issues of fact as to whether Plaintiff's "cyst" was benign or malignant as of July-August 2015 and whether the instant action is time barred, thus, rebutting the Defendant's prima facie entitlement to summary judgment as a matter of law. "Summary judgment is not appropriate . . . [when] the parties [submit] conflicting medical expert opinions because [s]uch conflicting expert opinions will raise credibility issues which can only be resolved by a jury" (Cummings v Brooklyn Hosp. Ctr., 147 AD3d 902, 904 [2d Dept 2017], quoting DiGeronimo v Fuchs, 101 AD3d 933 [2d Dept 2012] [internal quotation marks omitted]; see Elmes v Yelon, 140 AD3d 1009 [2d Dept 2016]; Leto v Feld, 131 AD3d 590 [2d Dept 2015].

Based on the foregoing, it is hereby

ORDERED, that the Defendant's motion is denied in its entirety; and it is further

ORDERED, that the Plaintiff is directed to serve a copy of this order upon the Defendant by first class regular mail at her last known address within twenty (20) days of entry of this order; and it is further

ORDERED, that the parties are directed to appear for a settlement conference on August 19, 2025, at 10:00 am, at 60 Centre Street, Room #351, New York, NY.

This constitutes the Decision and Order of the Court.