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

Upon the foregoing cited papers and after considering oral argument on September 30, 2025, pursuant to CPLR § 3212(b), the motion for summary judgment by Defendant Ashwin Trivedi, M.D. is GRANTED in its entirety.

BACKGROUND

Plaintiff commenced this action sounding in medical malpractice and negligence, alleging that Defendants failed to properly care for and treat Plaintiff Maryse Fong, resulting in [*2]cardiac arrest and anoxic brain damage.^[FN1] Plaintiff also asserts claims under Public Health Law § 2801-d and lack of informed consent.^[FN2] Following completion of discovery and the filing of the Note of Issue, Defendant Dr. Trivedi moved for summary judgment.^[FN3]

STANDARD OF REVIEW

Summary judgment is a drastic remedy and should only be granted where there is no genuine issue of material. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). "The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist." Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011) (internal quotation marks omitted). "Additionally, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmovant." Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

DISCUSSION

Lack of Informed Consent Claims Against Dr. Trivedi

To prevail on a claim for lack of informed consent, a plaintiff must show that:

(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).

Where the provider is a private physician attending to patients in a hospital facility, it is the duty of the physician, not the hospital to obtain the patient's informed consent. See Doria v. Benisch, 130 AD3d 777, 778 (2d Dept. 2015).

Defendant Trivedi established prima facie entitlement to summary judgment regarding on Plaintiff's lack of informed consent cause of action of.^[FN4] Defendant's expert affirmation established Defendant Trivedi did not perform a procedure or the like that was an "affirmative violation of physical integrity" of the body.^[FN5] S.W. v. Catskill Regional Med. Ctr., 211 AD3d 890 (2d Dept. 2022). In opposition, Plaintiff expert failed to address whether Defendant was required to obtain Plaintiff's informed consent and failed to do so. Accordingly, this branch of Defendant [*3]Dr. Trivedi's motion is granted, and Plaintiff's second cause of action is dismissed with prejudice as against Defendant Trivedi.

Public Health Law § 2801-d Claims Against Dr. Trivedi

"Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient." Deitch v. Sands Point Ctr. for Health and Rehabilitation, 237 AD3d 1043 (2d Dept. 2025). Therefore, the standard for liability under Public Health Law § 2801-d is neither deviation from accepted standards of medical practice nor breach of a duty of care, rather whether the injury to the patient was "caused by the deprivation of a right conferred by contract, statute, regulation, code, or rule." Id. at 1044 (citing Schwartz v. Partridge, 179 AD3d 963, 965 [2d Dept. 2020]).

Defendant Trivedi established prima facie entitlement to summary judgment on Plaintiff's Public Health Law § 2801-d cause of action.^[FN6] Defendant's expert affirmation established it did not violate any applicable statute, regulation, or rule. See Deitch, 237 AD3d at 1044.^[FN7] In opposition, Plaintiff failed to raise a triable issue of fact, as her expert did not address whether Defendant violated any applicable sections of the Public Health Law. Therefore, this branch of Defendant Dr. Trivedi's motion is granted, and Plaintiff's fourth cause of action is dismissed as against Defendant Trivedi.

Medical Malpractice and Negligence Claims Against Dr. Trivedi

To establish medical malpractice, a plaintiff must show:

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

(2) evidence that such deviation was a proximate cause of the injury.

"On a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby." Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022) (internal quotation marks omitted). "Once this showing has been made, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact." Cerrone v. North Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021) (internal quotation marks omitted). "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024) (internal quotation marks omitted).

Defendant Dr. Trivedi established entitlement to summary judgment on the first and third causes of action as against him.^[FN8] The submitted expert affirmations demonstrated that his care conformed to accepted medical standards and was not the proximate cause of Plaintiff's alleged injuries.^[FN9] Chillious v. Edouard, 234 AD3d 737 (2d Dept. 2025). Plaintiff's opposition failed to raise a triable issue of fact or establish familiarity with the applicable standard of care in internal medicine within a nursing home. Abruzzi v. Maller, 221 AD3d 753 (2d Dept. 2023); Dixon v. Chang, 163 AD3d 525 (2d Dept. 2018). Accordingly, this branch of Defendants' motion is granted and the first and third causes of actions against Defendant Dr. Trivedi are dismissed with prejudice.

CONCLUSION

Defendant Dr. Trivedi's motion for summary judgment is GRANTED in its entirety and Plaintiff's complaint is dismissed as to Dr. Trivedi.

This constitutes the Decision and Order of the Court.