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

Upon review of the cited papers and after considering oral argument on March 25, 2025, pursuant to CPLR § 3212(b), the Court issues the following Decision/Order:

• Defendant Jess Ting, M.D.'s ("Dr. Ting") motion for summary judgment (Motion Sequence # 7) is DENIED.

• The joint motion by Defendants Staten Island University Hospital ("SIUH") and SIUH, a subsidiary of the North-Shore Long Island Jewish Health System, Inc. (collectively, "SIUH"), Cynara Coomer, M.D., and Lawrence Draper, M.D. (Motion Sequence # 8), is GRANTED IN PART, specifically, all claims against Dr. Coomer and Dr. Draper (and vicariously against SIUH) are DISMISSED. The remainder of their motion is DENIED.^[FN1]

STANDARD OF REVIEW

Summary Judgment is a drastic remedy depriving a litigant of their day in court and should only be granted where there are no triable issues of fact. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). The Court's role is not to resolve factual disputes or assess credibility, but simply to determine whether such issues exist. Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). In doing so, the evidence must be viewed in the light most favorable to the non-moving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

In medical malpractice cases, the essential elements are:

(1) a deviation or departure from accepted medical practice, and

(2) evidence that such departure was a proximate cause of the injury. Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716 (2d Dept. 2022).

To establish a cause of action for lack of informed consent, a plaintiff must show:

(1) the provider failed to disclose alternatives and reasonably foreseeable risks that a reasonable practitioner would have disclosed,

(2) a reasonably prudent patient in the same position would not have undergone the treatment if fully informed, and

(3) the lack of informed consent is a proximate cause of the injury. Cox v. Herzog, 192 AD3d 757, 758 (2d Dept. 2021).

On a motion for summary judgment in a medical malpractice action, the defendant bears the initial burden of establishing either no departure from accepted medical practice or that any departure was not the proximate cause of the plaintiff's injury. 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. North Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021). Where the parties submit conflicting expert opinions, summary judgment is inappropriate, as such credibility issues must be resolved by a jury. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024).

DISCUSSION

As to Defendant Jess Ting, M.D. (and vicariously SIUH):

The Court finds Dr. Ting failed to meet their burden under CPLR § 3212(b) to establish entitlement to summary judgment as a matter of law. The record presents multiple triable issues of fact, including, but not limited to:

(1) Preoperative Evaluation: whether Dr. Ting failed to properly evaluate and assess Plaintiff's vascular sufficiency in connection with the breast-reconstruction portion of the [*2]May 8, 2014 surgery.^[FN2]

(2) Informed Consent: whether Dr. Ting failed to obtain informed consent from Plaintiff regarding the microsurgical deep inferior epigastric perforator ("DIEP") flap procedure, including whether he failed to adequately assess and advise her of the true risks associated with the DIEP flap and of alternative autologous surgical options that did not involve microvascular techniques.^[FN3]

(3) Surgical Technique: whether Dr. Ting improperly performed the DIEP flap procedure by utilizing the superior inferior epigastric vein instead of the deep inferior epigastric vein, which provides greater venous return and is generally preferred.^[FN4]

(4) Timing of Revision Surgery: whether Dr. Ting improperly assessed Plaintiff for the revision flap procedure performed on May 14, 2014, by proceeding without allowing sufficient time for the inflammatory process to resolve, thereby contributing to flap failure.^[FN5]

As to Defendants Cynara Coomer, M.D. and Lawrence Draper, M.D. (and vicariously SIUH):

In contrast, Defendants Dr. Coomer and Dr. Draper have each demonstrated, prima facie, their entitlement to summary judgment as a matter of law. Their showing is supported by deposition testimony, medical records, and the detailed expert affirmations of board-certified specialists: Dr. Alison Eastabrook, M.D. (surgeon), Sheila M. Lemke, M.D. (internal medicine and oncology), Maurice Y. Nahabedian, M.D. (plastic surgeon), and Dr. Richard P. Fried, M.D. (infectious disease).^[FN6]

As the Appellate Division has held, "[a]lthough physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied on by the patient." Cooper v. City of New York, 200 AD3d 849 (2d Dept. 2021) [*3](internal quotation marks omitted), lv. denied 38 NY3d 908 (2022). The evidence establishes that Dr. Coomer's role was limited to surgical oncology and did not extend to the reconstructive phase of Plaintiff's care. No evidence suggests that Dr. Coomer assumed a duty to reconstruct Plaintiff's breasts following oncologic resection. See Abruzzi v. Maller, 221 AD3d 753, 756 (2d Dept. 2023).

Further, the record supports that Dr. Ting was the lead surgeon responsible for the breast reconstruction, with Dr. Draper serving in a subordinate, assisting capacity. Notably, it was Dr. Ting, not Dr. Draper, who both advocated and performed the extensive revision flap procedure on May 14, 2014.^[FN7]

CONCLUSION

The Court considered the parties' remaining contentions and finds them either moot or without merit. All relief not expressly granted herein is denied.

Accordingly, it is hereby:

ORDERED that Defendant Dr. Ting's motion for summary judgment is denied.

It is further ORDERED that the joint motion of Defendants SIUH, Dr. Coomer, and Dr. Draper is granted to the extent that all claims against them are dismissed, and the remainder of their motion is denied.

It is further ORDERED that the caption of this action is amended to reflect the dismissal of Defendants Dr. Commer and Dr. Draper. It shall read as follows:

Plaintiff,

against

Defendants.

This constitutes the Decision and Order of the Court.

"[T]he DIEP flap procedure contemplated by [Dr.] Ting is an autologous microsurgical breast reconstruction procedure which utilizes the patient's own skin and subcutaneous tissue taken from the lower abdomen which is termed a 'flap' which is then transferred to the mastectomy area of the chest to reconstruct the breast. The blood flow to the flap is established using microsurgery to reconnect and anastomose blood vessel of the inferior epigastric artery to the artery and vein of the flap at the mastectomy site. The surgeon then shapes the flap to form a new breast" (emphasis added).