Jian Y. Lin v. Ian Chan

Unpublished Opinion

At an IAS Term, Part 80 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 1st day of July 2024.

PRESENT; HON. GENINE D. EDWARDS, Justice.

DECISION AND ORDER

HON. GENINE D. EDWARDS, J.S.C.

The following e-filed papers read herein:

NYSCEF Doc Nos.:
Notice of Motion, Affirmations, and Exhibits....................	255-270; 271-274
Affirmations in Opposition and Exhibits.............................	275-281; 282-289; 290-292
Reply Affirmation.........................................	294

In this action to recover damages for negligence, medical malpractice, and failure to obtain informed consent, plaintiff Jian Y. Lin ("plaintiff') moved for leave, pursuant to CPLR 2221 (d), to reargue the prior motion of defendants Ian Chan, M.D., and Ian Chan, M.D., P.C. (collectively, "Dr. Chan''), and the prior motion of defendant Keith Chang, M.D. ("Dr. Chang"), which, in each instance, sought summary judgment dismissing all of plaintiffs claims as against such defendant, and, upon reargument, denying the entirety of both prior motions and modifying the Court's Decision and Order, dated February 1, 2024 (the "prior order"), accordingly.^[1] Concurrently, defendant New York Eye & Ear Infirmary of Mount Sinai ("NYEEI") moved for leave, pursuant to CPLR 2221 (d), to reargue its prior motion, which sought summary judgment dismissing all of plaintiffs claims as against it ("NYEEI's prior motion"), and, upon reargument, granting the entirety of its prior motion or, in the alternative, granting the portion of its prior motion to the extent of

dismissing all of plaintiffs claims as against it to her care and treatment before May 13, 2015, and modifying the prior order accordingly. Opposition was submitted as to both motions. Both motions were fully submitted on June 7, 2024, and the Court reserved decision.

Standard of Review

"A motion for leave to reargue is directed to the trial court's discretion and, to warrant reargument, the moving party must demonstrate that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law." Fuentes v. 257 Toppings Path, LLC, 225 A.D.3d 744, 208 N.Y.S.3d 206 (2d Dept. 2024) (internal quotation marks omitted; emphasis added). Put otherwise, "[a] motion to reargue is based on no new proof; it seeks to convince the court that it overlooked or misapprehended something on the first go around and ought to change its mind." Siegel, New York Practice § 254 (6th ed 2023) (online edition).

For the reasons stated below, it is within the Court's discretion to grant plaintiff leave to reargue the branch of her motion that sought to reargue Dr. Chan's prior motion (but not to reargue Dr. Chang's prior motion) and, further, to grant NYEEI leave to reargue its prior motion. See e.g. Dray v. Staten Is. Univ. Hosp.,___A.D.3d___, 210 N.Y.S.3d 275, (2d Dept. 2024); U.S. Bank N.A. v. Sallie, 215 A.D.3d 714, 187 N.Y.S.3d 696 (2d Dept. 2023).

Reargument of Dr. Chan's Prior Motion

As noted, the initial branch of plaintiffs motion sought reargument of Dr. Chan's prior motion. As was relevant to Dr. Chan, the prior order differentiated between the fifth surgery on the one hand, and the first, second, third, and fourth surgeries on the other hand. With respect to the fifth surgery, the prior order (at pages 10-11) denied the branch of Dr. Chan's prior motion which was dismissal of plaintiffs negligence, medical malpractice, and informed consent claims as against him. Because the denial of Dr. Chan's prior motion insofar as predicated on the fifth surgery was favorable to plaintiff (and,

what's more, Dr. Chan failed to move for leave to reargue his prior motion), the Court construes the branch of plaintiffs instant motion for leave to reargue Dr. Chan's prior motion as having been directed to the first, second, third, and fourth surgeries.

With respect to the first surgery, the prior order held that plaintiff failed to rebut Dr. Chan's prima facie showing of entitlement to judgment as a matter of law. In that regard, the prior order (at pages 9-10) rejected plaintiffs contention that Dr. Chan's first surgery should have been in the form of scleral buckling alone (rather than the combined primary vitrectomy, post-operative intraocular tamponade with silicone oil, and supplemental scleral buckling) because the decision as to which type of surgery to perform fell within the spectrum of Dr. Chan's professional judgment as a vitreoretinal surgeon. Further, the prior order (at page 10) rejected plaintiffs lack of informed consent claim as to the first surgery, noting (at page 10) that "the consents were signed, and [that] no complaints were made by the plaintiff regarding her consent to the [first] .. . surger[y]." Lastly, the prior order (at page 10) held that [p]laintiff's [retinal] expert offered conclusory and speculative statements that failed to raise a triable issue of fact as to [her] claims of negligence, malpractice and informed consent regarding Dr. Chan's care, treatment, and his [first] . . . surger[y] . . . and failed to address or rebut specific assertions made by [Dr. Chan's expert]."

Contrary to Dr. Chan's contention in his prior motion, plaintiff did not improperly advance, for the first time in her opposition to his prior motion, her previously unpleaded theory that he should have performed scleral buckling alone, instead of the first surgery which he actually performed (i.e., the combined primary vitrectomy, post-operative intraocular tamponade with silicone oil, and supplemental scleral buckling) (the "scleral-buckling theory"). The general rule is that "[a] plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars." Palka v. Village of Ossining, 120 A.D.3d 641, 992 N.Y.S.2d 273 (2d Dept. 2014). "If the theory is discernable from the pleadings, [however,] it may be considered, especially if the

theory is referred to in the depositions." Larcy v. Kamler, 185 A.D.3d 564, 127 N.Y.S.3d 122 (2d Dept. 2020) (internal citations omitted). Such exception is consistent with the overarching principle that the "[u]se of an unpleaded defense in a summary judgment motion is not prohibited as long as the opposing party is not taken by surprise and does not suffer prejudice thereby." Rosario v. City of New York, 261 A.D.2d 380, 689 N.Y.S.2d 519 (2d Dept. 1999). See also Mainline Elec. Corp. v. Pav-LakIndus., Inc., 40 A.D.3d 939, 836 N.Y.S.2d 294 (2d Dept. 2007) ("a plaintiff may successfully oppose a motion for summary judgment by relying on an unpleaded cause of action which is supported by [his or her] submissions").

Here, although plaintiff did not advance the scleral-buckling theory either in her complaint or her initial and amended/supplemental bills of particulars, plaintiffs counsel extensively questioned Dr. Chan at his deposition as to why he decided to perform the first surgery as the combined primary vitrectomy, post-operative intraocular tamponade with silicone oil, and supplemental scleral buckling - instead of performing scleral buckling alone - as more fully reproduced in the margin.^[2] Thus, Dr. Chan could not have been

prejudiced or surprised by plaintiffs reliance on the scleral-buckling theory in opposition to his prior motion. Accordingly, the Court, on reargument, is permitted to consider plaintiffs scleral-buckling theory in her opposition to Dr. Chan's prior motion. See Refuse v. Wehbeh, 167 A.D.3d 956, 89 N.Y.S.3d 302 (2d Dept. 2018); Osipova v. Silverberg, 152 A.D.3d 614, 58 N.Y.S.3d 522 (2d Dept. 2017); Weiss v. Metropolitan Suburban Bus Auth., 106 A.D.3d 727, 964 N.Y.S.2d 581 (2d Dept. 2013). See also Mackauer v. Parikh, 148 A.D.3d 873, 49 N.Y.S.3d 488 (2d Dept. 2017); Valenti v. Camins, 95 A.D.3d 519, 943 N.Y.S.2d 504 (1st Dept. 2012) (relied on by the Second Judicial Department in Larcy v. Kamler, 185 A.D.3d 564, and Osipova v. Silverberg, 152 A.D.3d 614)^[3]

Contrary to Dr. Chan's further contention,^[4] the "error in judgment" doctrine did not apply to his selection of the type of the first surgery in the form of the combined primary vitrectomy, post-operative intraocular tamponade with silicone oil, and supplemental scleral buckling.^[5] Crediting the opinion of plaintiff s retinal expert (as reproduced below), the Court finds, on reargument, that the application of the "error in judgment" doctrine was inappropriate to Dr. Chan's selection of the type of the first surgery because, at the time, he was not presented with a choice between (or among) one of two or more medically acceptable alternative treatments or techniques. See Lacqua v. Silich, 141 A.D.3d 690, 35 N.Y.S.3d 488 (2d Dept. 2016); see also Schuster v. Sourour, 207 A.D.3d 491, 171 N.Y.S.3d 551 (2d Dept. 2022).^[6] According to plaintiff s retinal expert (in ¶ 23 of his/her affirmation), Dr. Chan violated a fundamental maxim of vitreoretinal surgery that the simplest method for reattaching the retina - here, scleral buckling - was the best choice,^[7] whereas "performing anything more than a scleral buckle [which was actually

what Dr. Chan did] was a departure from good and accepted ophthalmological practice." As plaintiffs retinal expert explained:

"[T]he [type of the first surgery] performed by Dr. Chan on April 6, 2014, was contraindicated because of the high risks associated with that