The following e-filed documents, listed by NYSCEF document numbers 72 through 99, 102 through 111, and 113 to 114 were read on the defendants' motion for summary judgment submitted on February 5, 2025.

In this alleged medical malpractice action, the defendants, Michael Anthony Zacchilli, M.D. (hereinafter "Zacchilli"), Northwell Health Physician Partners at Greenwich Village (hereinafter "NHPPCV"), and Northwell Health Physician Partners Orthopedic Institute at 7th Ave (hereinafter "NHPPOI"), move for summary judgment and dismissal of the complaint pursuant to CPLR § 3212; and pursuant to CPLR § 3211, dismissing the plaintiff's second cause of action for failure to state a cause of action and for such other and further relief as this court deems just and proper.

The defendants, support their motion, inter alia, with the expert affirmations of Joseph Fetto, M.D., a physician duly licensed to practice medicine in New York who is board certified in orthopedic surgery; and William D. Suggs, M.D., a physician duly licensed to practice medicine in New York who is board certified in vascular surgery.

The plaintiff opposes the defendants' motion and has submitted, inter alia, the expert affirmation of a physician (name redacted) duly licensed to practice medicine in New Jersey who is board certified in orthopedic surgery. The court notes that by stipulation the plaintiff has withdrawn the fourth cause of action, which alleges assault and battery against all defendants. See NYSCEF Doc. No. 10.

Upon the foregoing papers, the defendants' motion is denied. However, the plaintiff did [*2]not oppose dismissal of the asserted lack of informed consent claim (the fifth cause of action), and during argument of the motion, the plaintiff withdrew the claim. As such, all claims for lack of informed consent asserted against the defendants are dismissed. Additionally, the plaintiff did not oppose dismissal of claims related to treatment rendered before and after the surgery performed on September 13, 2022, and consequently, those claims are dismissed as well. The court's decision is outlined below.

This action arises from the alleged negligent treatment of the plaintiff, Samantha Ezzo, (hereinafter "plaintiff") by the defendants during arthroscopic surgery of her right knee on September 13, 2022.

On April 15, 2022, the plaintiff, then 27 years old, presented for an initial visit with Zacchilli at NHPPOI for evaluation of ongoing right knee pain, which she had been experiencing for six years following an injury. See NYSCEF Doc. No. 89 pgs. 35-38. The plaintiff reported that approximately nine years earlier she fell on her right knee and reinjured it six years later while exercising at the gym. She had previously undergone ACL and lateral meniscus repair, after which she did relatively well after surgery and completed a short course of therapy. She was able to return to basic sports activities but was not fully recovered with regards to jumping and pivoting activities. The plaintiff reported progressively increasing pain along the medial joint line, occasional morning locking sensations (e.g., popping and clicking), and a need to lift her leg to restore movement. She also experienced achy pain after prolonged periods on her feet and reported a pain level of 6 out of 10. See NYSCEF Doc. No. 89.

The examination of the right knee revealed full range of motion, trace effusion, focal tenderness to palpation of the medial joint line and a positive McMurray's Test. Zacchilli noted that the examination was consistent with possible trace posterior lateral corner injury and possible medial meniscus tear in the setting of prior ACL reconstruction and lateral meniscus repair. Zacchilli recommended a course of physical therapy and the use of her previous ACL brace. If she failed to improve in 6-8 weeks, an MRI would be considered to evaluate for a medial meniscus tear and a posterolateral corner strain. (See NYSCEF Doc. No. 89).

By the June 17, 2022, office visit, physical therapy and use of the brace had not improved her symptoms. The right knee continued to give way, was uncomfortable and she had persistent medial joint line pain. The examination remained consistent with a grade 2 posterior lateral corner injury and persistent medial joint line pain with a possible medial meniscus tear in the setting of her prior knee injury and ACL reconstruction.

An MRI of the right knee was obtained on June 23, 2022, which demonstrated that she had a posterior medial meniscal tear. Given the nature of the medial meniscus tear, Zacchilli recommended a meniscal repair as the minimum course of action, if possible. He discussed that due to the characteristics of the tear and the chronicity of her symptoms, there was a possibility that a repair might not be possible. If that were the case, a functional complete meniscectomy could be necessary. (See NYSCEF Doc. No. 89).

During the July 22, 2022, follow-up visit surgical and non-surgical options were discussed and Zacchilli recommended a meniscal repair as the most appropriate course of action. During the September 9, 2022, telehealth visit the plaintiff opted to proceed with surgery.

On September 13, 2022, the plaintiff presented to Greenwich Village Ambulatory Surgery Center for a scheduled right knee arthroscopy with medial meniscus repair versus [*3]debridement and examination under anesthesia, to be performed by Zacchilli. The pre-operative diagnosis is listed as a right knee posterior horn medial meniscus tear. The post-operative diagnosis is listed as recurrent posterior horn medial meniscus tear, healed partial lateral meniscus tear, and intraoperative popliteal artery and venous injury. (See NYSCEF Doc. No. 89).

During the surgery, after he placed a retractor and while preparing to proceed with the meniscus repair, Zacchilli observed a sudden release of approximately 50 to 75 mL of venous blood coming from the posteromedial incision, which raised concerns of a possible popliteal vessel injury. In response, the wound was thoroughly packed, irrigated, and visualized and Zacchilli requested that Jennifer Svahn, M.D., a vascular surgeon, see the plaintiff. While waiting for Dr. Svahn's arrival, Zacchilli continued his evaluation of the meniscus, aborted meniscal repair and instead performed a partial meniscectomy. (See NYSCEF Doc. No. 89).

According to Dr. Svahn's records, she was called for an emergency intraoperative consultation to address a vascular injury in the right leg, with uncontrolled bleeding, occurring during an elective meniscus repair surgery performed by Zacchilli. See NYSCEF Doc. No. 93. Dr. Svahn extended he incision at the medial right knee both proximally and distally to facilitate access. During dissection, Dr. Svahn performed vascular exploration of right popliteal artery and vein and identified avulsion of two small popliteal artery branches which were ligated and oversewn. No further arterial or venous bleeding ensued. Dr. Svahn confirmed normal pulsation at the popliteal artery both proximal and distal to the repair site, and the patient demonstrated easily palpable right dorsalis pedis (DP) and posterior tibial (PT) pulses in the foot with normal perfusion. (See NYSCEF Doc. No. 89 and 93).

Summary judgment is a drastic remedy that deprives litigants of their day in court, and it "should only be employed when there is no doubt as to the absence of triable issues." Andre v Pomeroy, 35 NY2d 361 (1974); Bonaventura v Galpin, 119 AD3d 625 (2d Dept 2014); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). The function of the court on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but merely determine whether such issues exist. Guadalupe v New York City Tr. Auth., 91 AD3d 716 (2d Dept 2012); Kolivas v Kirchoff, 14 AD3d 493 (2d Dept 2005). Importantly, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party. Pearson v Dix McBride, LLC, 63 AD3d 895 (2d Dept 2009). The proponent of a summary judgment motion is required to tender sufficient evidence to demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hosp., 68 NY2d 320 (1986).

A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of plaintiff's injuries. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Schwartzberg v Huntington Hospital, 163 AD3d 736 (2d Dept 2018). Once the showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the [*4]defendant met the prima facie burden (see Mackauer; Schwartzberg).

In opposition to a summary judgment motion, the plaintiff's expert must address the contentions of the defense expert to establish an issue of fact. Failure to do so warrants dismissal of the action. Senatore v Epstein, 128 AD3d 794 (2d Dept 2015). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment." Alvarez; see also Kramer v Rosenthal, 224 AD2d 392 (2d Dept 1996). Moreover, "where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation the opinion should be given no probative force and is insufficient to withstand summary judgment." Diaz v New York Downtown Hosp., 99 NY2d 542 (2002).

It is well-settled that expert testimony must be based on facts in the record personally known by the witnesses, and that an expert cannot reach a conclusion by assuming "material facts not supported by evidence." Cassano v Hagstrom, 5 NY2d 643 (1959). Expert opinions that are conclusory or unsupported by the record are insufficient to raise triable issues of fact. Aliosha v Ostad, 153 AD3d 591 (2d Dept 2017) (affirming the lower court's decision granting defendant's motion for summary judgment because plaintiff's unnamed expert was conclusory and speculative, and failed to address specific assertions made by the defendant's expert, especially those pertaining to proximate causation).

Furthermore, an expert affirmation in opposition to a motion for summary judgment must set forth the medically accepted standards of care or protocol and explain how it was departed from. Geffner v North Shore University Hosp., 57 AD3d 839 (2d Dept 2008). Such an affirmation must address all the key facts relied on by the defendant's expert. Geffner; see also Rebozo v Wilen, 41 AD3d 457 (2d Dept 2007). In opposition, a plaintiff must "submit material or evidentiary facts to rebut the defendant's prima facie showing that he or she was not negligent in treating the plaintiff." Langan v St. Vincent's Hosp. of NY, 64 AD3d 632 (2d Dept 2015).

In her bill of particulars, supplemental bill of particulars, second supplemental bill of particulars and third supplemental bill of particulars (NYSCEF Doc. No. 78 and 79), the plaintiff claims that Zacchilli departed from the mandated standard of care; failed to properly perform arthroscopic leg surgery; failed to perform the proper medical procedures; departed from good and accepted medical practice; failed to possess the existing state of knowledge in vascular medicine; carelessly and negligently lacerated and/or caused to bleed, plaintiff's artery and vein in the course of the surgery; performed an improper and inappropriate surgical procedure. failed to properly place the retractor during the subject surgery; failed to properly utilize the retractor during the subject surgery; damaged the popliteal artery and vein; failed to use the proper retractor for the surgery performed; and violated the standard of care by using a student retractor for the subject surgery.

The plaintiff claims that as a result of the defendants' departures from the standard of care, she was caused to undergo an emergency vascular surgery to repair the lacerated artery and vein, resulting in permanent injuries including a scar and deformity to her right leg.

Zacchilli contends that he did not depart from accepted standards of care with respect to the treatment rendered to plaintiff and any alleged injuries were not proximately caused by any alleged deviations from the standard of care.

Zacchilli's contentions are supported by the detailed expert affirmations of Joseph Fetto, [*5]M.D. (NYSCEF Doc. No. 74) and William D. Suggs, M.D. (NYSCEF Doc. No. 75) who support their opinions with specific references to the record including, deposition testimony and medical records.

Dr. Fetto opines that the medical records and imaging show that the plaintiff's meniscus exhibited a combination of an older tear that did not fully heal from a previous surgery, as well as a new tear; that these overlapping injuries complicated the surgical plan; that while placing a blunt retractor—commonly known as a student retractor—to enhance access to the posterior medial knee, an avulsion injury occurred to the popliteal vein and artery; that this type of injury, which involves the pulling or tearing away of a vessel, is a known and accepted risk in surgeries involving the posterior knee, particularly in the presence of scar tissue from prior operations; that dense adhesions around the popliteal vessels increased the risk of such an injury; that a student retractor is a standard surgical instrument utilized in various procedures, including arthroscopic knee surgery, to maintain visibility and facilitate access to the surgical site; that despite Zacchilli's careful dissection techniques, the inherent risks of the procedure, combined with the patient's altered anatomy from prior surgery, led to the avulsion injury which did not result from a deviation from the standard of care by Zacchilli , but rather, it was an unfortunate but recognized complication of the surgery, exacerbated by the patient's surgical history and the presence of scar tissue; that the avulsion injury was not a result of any deviation in technique by Zacchilli or the manner in which he handled the retractor, rather, it stemmed from the inherent risks associated with the procedure and the presence of scar tissue; that upon noticing the bleeding from the posteromedial incision, Zacchilli immediately recognized the potential for vascular injury and took appropriate and timely action by contacting vascular surgeon, Dr. Jennifer Svahn, and by packing the wound and thoroughly irrigating the area; that Zacchilli's actions upon encountering the bleed were entirely within the standard of care; that while waiting for Dr. Svahn to arrive, and given that there was no active bleeding, Zacchilli appropriately proceeded with the meniscal debridement, as the planned repair was not feasible due to the condition of the meniscus and the extensive scar tissue from the prior surgery; that he vascular repair was completed without complications; that extending the incision was necessary to effectively manage the intraoperative complication; that Zacchilli's treatment did not proximately cause the plaintiff's current complaints of pain, discomfort, medial joint pain, numbness, tingling, popping, clicking sensations, or shooting pain as these symptoms predated the surgical intervention and were a continuation of her longstanding knee issues and are a natural progression of her preexisting condition, rather than a consequence of the care provided by the defendant or specifically the partial meniscectomy performed on September 13, 2022. See NYSCEF Doc. No. 74.

Dr. Suggs opines that the plaintiff sustained an avulsion injury during the surgery on September 13, 2022; that this type of vascular injury is a known and accepted risk associated with knee arthroscopy, particularly in cases such as here where prior surgeries have altered the anatomy; that the plaintiff's 2016 right knee arthroscopy resulted in significant scar tissue formation in the popliteal region, which greatly increased her susceptibility to vascular injury during the subsequent procedure; the avulsion injury the plaintiff sustained is consistent with these recognized and accepted risks and occurred in the absence of negligence; that the avulsion injury was not the result of any deviation from the standard of care by the defendant; that the plaintiff has not experienced any subsequent vascular complications or sequelae as a result of the surgery performed on September 13, 2022 and that there is no evidence of arterial or venous [*6]constriction or narrowing. See NYSCEF Doc. No. 75.

Through his submissions, Zacchilli has satisfied his burden of establishing prima facie entitlement to summary judgment. As such, the burden thereafter shifted to the plaintiff to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action.

In opposition, plaintiff has supported her contentions with the expert affirmation of a physician (name redacted) duly licensed to practice medicine in New Jersey and who is board certified in orthopedic surgery (NYSCEF DOC. NO. 103). The expert supports the opinions with references to the record including, deposition testimony and medical records.

The plaintiff's expert opines that Zacchilli departed from the standard of care during the subject surgery on September 13, 2022, by improperly placing and using a retractor causing avulsion injuries to the plaintiff's popliteal artery and vein, which had to be surgically repaired by Dr. Svahn; that the popliteal artery and vein would not have been at risk and the avulsion injuries would not have occurred, if during Zacchilli's approach, the retractor had been properly placed and utilized; that Zacchilli's failure to properly place and/or utilize the retractor was a deviation from good and accepted medical practice; that the avulsion injuries to the artery and vein occurred before the surgery reached the stage where any neurovascular structure should have been at risk; that the risk to the popliteal vessels is described in lateral meniscal repair, not medial; that the vascular risk in medial meniscal repair is to the saphenous vein; that Zacchilli's attempt at the medial meniscal repair, if performed properly, would not have placed the popliteal artery or vein at risk; that pre-operative MRIs taken of the right knee demonstrated no atypical vascular anatomy; and Dr. Svahn, the vascular surgeon who repaired the damaged artery and vein, did not note any atypical anatomy.

The plaintiff has produced evidentiary proof in admissible form sufficient to establish issues of fact exist, which would require a trial of the action, regarding the treatment rendered by Zacchilli during the surgery performed on September 13, 2022. Accordingly, summary judgment must be denied.

The defendants move pursuant to CPLR 3211(a)(7) to dismiss the plaintiff's second cause of action for failing to state a cause of action upon which relief may be granted, specifically arguing that the second cause of action fails to state a cause of action sounding in intentional infliction of emotional distress. The plaintiff opposes and contends that the cause of action is for negligent infliction of emotional distress, not intentional infliction. In reply, the defendant argues that the claim for negligent infliction of emotional distress was not properly pleaded and must be dismissed.

Contrary to the plaintiff's contention, the submitted facts, circumstances and evidence do not establish a prima facie cause of action for negligent infliction of emotional distress. The plaintiff's claimed "emotional and psychological trauma" are alleged to result from physical injuries she sustained due to the alleged negligence of Zacchilli during the knee surgery of September 13, 2022. The emotional injuries are not claimed to result from a breach of a duty owed to her which either unreasonably endangered her physical safety or caused her to fear for her own safety, as is required. These claimed emotional injuries are elements of damages that flow from her cause of action for medical malpractice, not from a separate and distinct cause of [*7]action for negligent infliction of emotional distress.

The Second Department has consistently characterized the circumstances under which recovery may be had for negligent infliction of emotional distress as limited and requiring "the breach of a duty owed to [the] plaintiff which either unreasonably endangers the plaintiff's physical safety or causes the plaintiff to fear for his or her own safety." Lea v McNulty, 227 AD3d 971 (2d Dept 2024); Santana v Leith, 117 AD3d 711 (2d Dept 2014); See also Jason v Krey, 60 AD3d 735 (2d Dept 2009); Lancellotti v Howard, 155 AD2d 588 (2d Dept 1989). The plaintiff has failed to sufficiently plead a cause of action for negligent infliction of emotional distress and has failed to establish that defendants unreasonably endangered her physical safety, or that defendants caused her to fear for her own safety. Accordingly, the second cause of action is dismissed.

"While the common knowledge and everyday experience of lay jurors may be inadequate to support the inference of negligence in medical malpractice cases, a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence" (Kambat v St. Francis Hospital, 89 NY2d 489 [1997]). This is not one of them.

To rely on the doctrine of res ipsa loquitur in a medical malpractice matter, a plaintiff must establish three elements: (1) the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. Kambat; see also Keane v Sloan-Kettering Institute for Cancer Research, 96 AD2d 505 (2d Dept 1983) (holding that "[i]t is fundamental that unless the alleged act of malpractice falls within the competence of a lay jury to evaluate, it is incumbent upon the plaintiff to present expert testimony in support of the allegations to establish a prima facie case of malpractice").

The defendants argue that the avulsion injuries to the plaintiff's popliteal artery and vein occurred as a result of a recognized risk of the surgery, for which the plaintiff was made aware of and consented to, and that they occurred in the absence of any negligence by Zacchilli. The defendants' contentions are supported by the expert opinions of Dr. Fetto and Dr. Suggs. The plaintiff has failed to establish that the event was of a kind that ordinarily does not occur in the absence of someone's negligence. Kambat. As outlined above, issues of fact exist as to whether Zacchilli departed from accepted practice in the performance of the surgery in issue. Accordingly, the plaintiff cannot rely on res ipsa loquitur, and the third cause of action is dismissed.

The verified complaint and bills of particulars allege that the only claims against these entities are based on vicarious liability for Dr. Zacchilli's care and treatment. To the extent the plaintiff's claims against these defendants are based on vicarious liability for the negligent acts of Zacchilli, their motion must be denied for the reasons stated above.

The court has considered any remaining contentions of the parties and finds them to be unpersuasive.

Accordingly, it is hereby,

ORDERED, the defendants' motion is denied, except that the lack of informed consent claim, claims related to treatment rendered before and after the surgery performed on September 13, 2022, claims for negligent infliction of emotional distress, claims based on res ipsa loquitur and claims of assault and battery, asserted against the defendants, are all dismissed; and it is further

ORDERED, that any additional requests for relief are hereby denied.