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 April 8, 2025, pursuant to CPLR § 3212(b), the Court issues the following Decision and Order:

• Defendant the Brooklyn Hospital Center's ("TBHC") motion for summary judgment (Motion Sequence # 1) is GRANTED IN PART to the extent that Plaintiff's claims arising from clinical and emergency care rendered prior to January 25, 2021 are [*2]dismissed. The remainder of its motion is DENIED.

• Defendant Olatunde Osofisan, DPM's ("Dr. Osofisan"), motion for summary judgment (Motion Sequence # 2) is GRANTED IN PART on the same basis, and the remainder of the motion is DENIED.

Plaintiff Eunice Augustin, a diabetic, received treatment from Defendant Dr. Osofisan at TBHC ambulatory clinic beginning in May of 2018.^[FN1] On January 24, 2021, Plaintiff presented to TBHC's emergency department with elevated glucose, right arm swelling, and right shoulder pain.^[FN2] She was later diagnosed with sepsis and necrotizing infection in her left foot.^[FN3] On January 26, 2021, an above the knee amputation was performed to control the infection.^[FN4]

Plaintiff then commenced this action alleging medical malpractice and negligence, claiming Defendants failed to properly diagnose and treat Plaintiff's bacterial infection, resulting in several injuries including amputation, toxic metabolic encephalopathy, claw hand, and upper extremity limitations.^[FN5] Plaintiff Samuel Augustin asserts derivative claims of loss of services.^[FN6] After discovery and filing of the Note of Issue, both Defendants moved for summary judgment.^[FN7]

Summary judgment is appropriate only where no genuine issue of material fact exists. Kolivas v. Kirchoff, 14 AD3d 493, 493 (2d Dept. 2005). The Court does not resolve factual disputes or assess credibility, rather determines whether such disputes exist. Laris v. City of New York, 236 AD3d 637, 638 (2d Dept. 2025). Evidence must be viewed in the light most favorable to the nonmoving party. Gambarian v. Spivakov, 241 AD3d 1529, 1529 (2d Dept. 2025).

To prevail on a medical malpractice claim, a plaintiff must establish:

(1) a departure from accepted medical practice; and

(2) that such departure was a proximate cause of injury.

"In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation [*3]from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff." Attia v. Klebanov, 192 AD3d 650, 651 (2d Dept. 2021). "A defendant's expert's...affirmation that merely recount[s] the treatment rendered and opine[s] in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice is insufficient to meet this burden." Marsh v. City of New York, 191 AD3d 973, 973-974 (2d Dept. 2021) (internal quotation marks omitted). "A defendant's failure to make such prima facie showing requires the denial of the motion, regardless of the sufficiency of the opposing papers." Martinez v. Orange Regional Med. Ctr., 203 AD3d 910, 912-913 (2d Dept. 2022). "Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden." Alao v. Richmond Univ. Med. Ctr., 213 AD3d 722, 723 (2d Dept. 2023) (internal quotation marks omitted). Where the parties submit conflicting medical expert opinions, summary judgment is inappropriate because "[s]uch credibility issues can only be resolved by a jury." Feinberg v. Feit, 23 AD3d 517, 519 (2d Dept. 2005).

As an initial matter, Plaintiff does not oppose dismissal of claims relating to care rendered prior to January 25, 2021.^[FN8] As both Defendants met their prima facie burden on those claims, they are dismissed.^[FN9] Torres v. New York City Health and Hosps. Corp., 238 AD3d 798 (2d Dept. 2025).

However, triable issues of fact exist regarding the care provided to Plaintiff between January 25, 2021 and January 26, 2021. The record presents multiple triable issues of fact, including whether Defendants:

(1) failed to properly diagnose and treat the Plaintiff's infection on January 25, 2021 by performing an incision and drainage;^[FN10]

(2) failed to assess the extent of infection above the ankle;^[FN11]

(3) failed to request timely surgical consultation and perform a below-the-knee amputation;^[FN12]

(4) failed to communicate accurately regarding infection control;^[FN13] and

(5) delayed definitive source control of the infection, contributing to Plaintiff's injuries.^[FN14]

Conflicting expert opinions preclude summary judgment.^[FN15] Plaintiffs' experts—a podiatrist and a surgeon—are qualified to opine on these issues. Humphrey v. Jewish Hosp. and Med. Ctr. of Brooklyn, 172 AD2d 494 (2d Dept. 1991); Vallone v. Vulcano, 220 AD3d 454 (1st Dept. 2023) (where court found plaintiff's podiatrist expert was qualified to opine on the standard of care applicable to foot surgeries since he treated patients with injuries requiring the surgery at issue).

The Court considered the parties' remaining contentions and found them either moot or unavailing in light of its determination. All relief not expressly granted herein is denied.

Accordingly, Defendants' motions are granted in part solely as to claims for care prior to January 25, 2021, which are dismissed. The remainder of both motions is denied. Plaintiff Samuel Augustin's derivative claim for loss of services survives as to the care rendered to Plaintiff Eunice Augustin between January 25, 2021 and January 26, 2021.

This constitutes the Decision and Order of the Court.