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

Upon review of the submitted papers and after oral argument on December 2, 2025, pursuant to CPLR § 3211(a)(7), the motion to dismiss filed by Defendants Bobby Buka, M.D., Jeremy Nicoloff, PA-C,^[FN1] and the Dermatology Specialists (Motion Sequence #3) is DENIED. In opposition, Plaintiff filed a cross-motion to dismiss and seeking sanctions pursuant to 22 NYCRR § 130-1.1 (Motion Sequence #4), is likewise DENIED.

On or about August 19, 2022, at the Dermatology Specialists' facility,^[FN2] Physician Assistant ("PA") Jeremy Nicoloff administered a Kenalog injection to Plaintiff for treatment of a cyst in her groin and hip area.^[FN3] Shortly thereafter, Plaintiff allegedly experienced fat and muscle atrophy, a deep visible divot, and permanent scarring and discoloration near the injection site.^[FN4] Plaintiff contends these injuries resulted from Defendants' negligent performance of the injection and negligent post-procedure monitoring.^[FN5]

On December 5, 2023, Plaintiff commenced this action alleging medical malpractice and lack of informed consent.^[FN6]

On October 20, 2025, Defendants moved to dismiss the Complaint against Defendant Dr. Buka asserting that he was improperly named because he neither treated nor supervised Plaintiff's care and had no physician-patient relationship with her.^[FN7] Therefore, liability for medical malpractice may not be imposed in the absence of a physician-patient relationship between Dr. Buka and Plaintiff.^[FN8]

Plaintiff opposed and cross-moved for sanctions pursuant to 22 NYCRR § 130-1.1 arguing that Dr. Buka is a proper party and Defendants' motion was frivolous to the litigation.^[FN9]

Oral argument was heard on December 2, 2025, and the Court reserved decision.

CPLR § 3211(a)(7)

On a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), the pleading must be liberally construed, the alleged facts accepted as true, and Plaintiff is accorded every favorable inference to determine whether the facts fit within any cognizable legal theory. See Leon v. Martinez, 84 NY2d 83, 87-88 (1994). Defendants bear the burden of establishing the Complaint failed to state a viable cause of action. See Martinez v. NYC Health & Hosps. Corp., 223 AD3d 731, 732 (2d Dep't 2024) (citing Conolly v. Long. Is. Power Auth., 30 NY3d 719, 728 [2018]).

When evidentiary material is considered, the question becomes whether Plaintiff has a cause of action, not merely whether one is stated. See id. Dismissal is warranted only if the evidence conclusively establishes that Plaintiff has no cause of action. See id. (citing Rovello v. Orogino Realty Co., 40 NY2d 633, 635 [1976]); see also Estate of Pierro v. Carmel Richmond Healthcare & Rehab. Ctr., 241 AD3d 645, 646 (2025); Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682, 682-683 (2d Dep't 2012).

Medical Malpractice

Medical malpractice is a negligent act or omission by a healthcare provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient. See Butler v. Wyckoff Heights Med. Ctr., 233 AD3d 745, 747 (2d Dept. 2024). To establish a cause of action for medical malpractice, the essential elements are:

(1) a deviation from accepted medical practice; and

(2) that such deviation proximately caused the injury.

Lack of Informed Consent

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

(1) failure to disclose alternatives and reasonably foreseeable risks that a reasonable practitioner would have disclosed;

(2) that a reasonably prudent patient in the same position would have declined treatment if fully informed; and

(3) the lack of informed consent proximately caused the injury.

Sanctions Pursuant to 22 NYCRR 130-1.1

Pursuant to 22 NYCRR § 130-1.1, in its discretion the Court, may award costs or impose financial sanctions upon any party or attorney in a civil action who engages in frivolous conduct. See NYCRR § 130-1.1(a). Conduct is frivolous if:

(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;

(2) it is undertaken primarily to delay or prolong the resolution of the litigation; or

(3) it asserts material factual statements that are false. NYCRR § 130-1.1(c).

In determining whether conduct is frivolous, the Court considers the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct, and whether the conduct continued after its lack of merit was apparent. See 22 NYCRR § 130-1.1(c)

Defendant's Motion to Dismiss (Motion Sequence #3)

Defendants argue that Dr. Buka cannot be liable absent a physician-patient relationship.^[FN10] In support of their motion, Defendants submitted Dr. Buka's affidavit/affirmation and Plaintiff's deposition transcript.^[FN11] His affirmation states he is a partial owner of Defendant Dermatology Specialists, did not treat Plaintiff, did not supervise her care, and did not sign progress notes.^[FN12] Plaintiff's deposition confirms she did not know Dr. Buka.^[FN13]

Plaintiff counters with medical records showing "Bobby Buka M.D., PC" electronically signed progress notes for multiple visits, including the August 19, 2022 treatment by PA Nicoloff.^[FN14] For example, Bobby Buka M.D., PC, electronically signed the March 25, 2021, progress notes of PA Patricia Kennedy, the August 19, 2022, progress notes of PA Nicoloff, and [*2]the November 3, 2022, and December 15, 2022, progress notes of PA Emily Gale.^[FN15]

Defendants failed to conclusively establish Plaintiff failed to state a claim of medical malpractice against Dr. Buka. See Liquori v. Dolkart, 204 AD3d 1099 (3d Dep't 2022); Ellis v. Mollette, 226 AD3d 868, 869 (2d Dep't 2024); see also Bokhour, 94 AD3d at 682-683.

Under New York Education Law § 6542(1) "a physician assistant may perform medical services, but only when under the supervision of a physician and only when such acts and duties are assigned to such physician assistant are within the scope of practice of such supervising physician." Therefore, a physician-patient relationship may be created, and a physician may be held liable for medical malpractice, where a physician is responsible for supervising a health-care professional such as a physician assistant, and the physician inadequately supervises the health-care professional, thus causing or contributing to the inadequacy of the care rendered. See Ellis, 226 AD3d at 869.

Here, Defendants have not conclusively established that Dr. Buka owed no duty to supervise PA Nicoloff's treatment of Plaintiff. See Bokhour, 94 AD3d at 682-683 ("affidavits submitted by a defendant will almost never warrant dismissal under CPLR § 3211"). Therefore, Defendants have not established that a physician-patient relationship does not exist between Dr. Buka and Plaintiff. See NY Educ. L. § 6542(1).

Moreover, factual issues exist regarding potential vicarious liability for acts of PA Nicoloff and The Dermatology Specialists. Liquori v. Dolkart, 204 AD3d 1099 (3d Dep't 2022). Accordingly, dismissal is unwarranted.

Plaintiff's Cross-Motion Seeking Sanctions (Motion Sequence #4)

Plaintiff's cross-motion seeks sanctions pursuant to 22 NYCRR § 130-1.1, for Defendants' refusal to produce Dr. Buka for deposition.^[FN16] Specifically, Plaintiff explained she served Dr. Buka a Notice of Deposition on August 26, 2024, yet Defendants refused to produce him for the deposition arguing was an improperly named party to the action.^[FN17] Instead of producing Dr. Buka for a deposition, Defendants filed a frivolous motion (Motion Sequence #3).

However, Defendants' motion was not frivolous under 22 NYCRR § 130-1.1. The record does not show that the motion lacked merit, was intended to delay, or contained false statements.

Further, Defendants confirmed at oral argument on December 2, 2025 that Dr. Buka's [*3]deposition is to be scheduled by January 15, 2026,^[FN18] pursuant to the Court's October 27, 2025 Order. Sanctions are therefore denied.

Accordingly, Defendants' motion to dismiss Plaintiff's complaint as against Dr. Buka (Motion Sequence #3) is denied. Plaintiff's cross-motion seeking sanctions, pursuant to 22 NYRCC § 130-1.1, (Motion Sequence #4) is DENIED.

This constitutes the Decision and Order of the Court.