Khurdayan v. Kassir

• Citation: 2022 NY Slip Op 34228 (U)
• Decision Date: 14 December 2022
• Docket Number: Index No. 159480/2017,Motion Seq. No. 009
• Parties: AREVIK KHURDAYAN, Plaintiff, v. RAMTIN KASSIR, M.D., NY SNORING AND SINUS CLINIC, NY SNORING AND SINUS, P.C., NEW YORK SNORING AND SINUS MEDICAL TREATMENT, P.C., PARK AVENUE PLASTIC SURGERY, PLLC, DANIELLE TOSI, and DANIELLE TOSI, M.D. LLC, Defendants.
• Court: United States State Supreme Court (New York)

2022 NY Slip Op 34228(U)

AREVIK KHURDAYAN, Plaintiff,
v.
RAMTIN KASSIR, M.D., NY SNORING AND SINUS CLINIC, NY SNORING AND SINUS, P.C., NEW YORK SNORING AND SINUS MEDICAL TREATMENT, P.C., PARK AVENUE PLASTIC SURGERY, PLLC, DANIELLE TOSI, and DANIELLE TOSI, M.D. LLC, Defendants.

Index No. 159480/2017, Motion Seq. No. 009

Supreme Court, New York County

December 14, 2022

Unpublished Opinion

Motion Date 08/30/2022

PRESENT: HON. JOHN J. KELLEY, Justice

AMENDED DECISION + ORDER ON MOTION

HON. JOHN J. KELLEY, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 009) 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257, 258, 259, 260, 261, 262, 263, 264, 265, 266, 267, 268, 269, 270, 271, 272, 273, 274, 276, 277, 278, 279, 281, 284, 285, 286, 287, 288, 289, 290, 291, 292, 293 were read on this motion to/for SUMMARY JUDGMENT/PRECLUDE EXPERT .

The court's prior decision and order on motion, dated December 7, 2022, is recalled and vacated, upon the court's own motion, in order to correct the last sentence in Section V(C), to amend the decretal paragraph properly to describe the motion, and to correct typographical errors, and the following amended order is substituted therefor:

I. INTRODUCTION

This is an action, inter alia, to recover damages for breach of contract, medical malpractice based on departures from good and accepted practice, lack of informed consent, and fraud premised upon forgery. The defendants Ramtin Kassir, M.D., NY Snoring and Sinus Clinic, NY Snoring and Sinus, P.C., New York Snoring and Sinus Medical Treatment, P.C., and Park Avenue Plastic Surgery, PLLC (collectively the Kassir defendants), move pursuant to CPLR 3126 to preclude the plaintiff from relying upon her retained experts, and thereupon pursuant to CPLR 3212 for summary judgment dismissing, insofar as asserted against them, all

1

of the causes of action remaining in the amended complaint. The plaintiff opposes the motion. The motion is denied.

II. FACTUAL BACKGROUND

The crux of the plaintiff's claim is that, in February 2016, she underwent what she believed to be rhinoplasty for cosmetic purposes and septoplasty to straighten a deviated septum, that the Kassir defendants only performed rhinoplasty, and that someone forged her signature on numerous informational and consent forms by employing one non-genuine signature that was electronically auto-populated into numerous forms and documents. She claimed that, inasmuch as the Kassir defendants did not actually perform the septoplasty, she unnecessarily sustained continued and ongoing problems with breathing, nasal congestion, and impediments to nasal drainage that should have been addressed by the February 2016 surgery. She further claimed that, as a consequence, she was compelled to undergo an otherwise unnecessary second surgery, by a different physician, to rectify her deviated septum.

The Kassir defendants denied that they departed from good and accepted medical practice in performing the procedure that they performed or that anything that they did or did not do caused or contributed to any of the plaintiff's claimed injuries. They asserted that Kassir actually removed tissue from the plaintiff's septum during surgery, and that the essence of her claim is that Kassir did not perform any surgical procedure on her sinuses or on the elements of her ostiomeatal complex---forms of treatment that were not agreed upon that were the only procedures that could have corrected the plaintiff's breathing and nasal congestion problems. They further contended that they obtained the plaintiff's fully informed consent to all medical procedures, that the plaintiff knew that there was a possibility that a complete septoplasty might not be performed, and that they did not forge her signature on any documents, electronic or otherwise.

By order dated June 5, 2020, the court (Madden, J.) dismissed the causes of action to recover for engagement in deceptive business practices in violation of General Business Law §§ 340 and 350

2

(second cause of action), fraud and fraudulent inducement premised upon alleged misrepresentations by the defendants (third cause of action), unjust enrichment (fourth cause of action), and promissory estoppel (fifth cause of action), and severed the remaining causes of action, which seek to recover for breach of contract, medical malpractice, lack of informed consent, and fraud premised upon forgery.

On November 19, 2013, Dr. Daniel B. Kuriloff had diagnosed the plaintiff with a deviated septum, but informed her that this condition might or might not be the cause of her reported breathing and nasal congestion problems. The plaintiff first contacted Kassir in June 2015, and first met with him on August 11, 2015, after having conducted independent lay research into septoplasty and rhinoplasty procedures. She sought advice from him concerning those procedures, including whether they were appropriate for her and the nature of any adverse effects, and further inquired about Kassir's experience and the cost of the procedures. The plaintiff completed and signed a patient questionnaire on her first visit with Kassir that, among other things, mentioned "Mona Lisa Cosmetic Surgery Center." Although the plaintiff conceded that the words "Mona Lisa" appeared at the very bottom of the second page of the two-page patient questionnaire; she asserted that the heading of both pages of the questionnaire stated, in much larger, all-capital-letter, boldface type, the names "NEW YORK SNORING & SINUS," followed on the next line, also in larger, all-capital-letter type, by "RAMTIN KASSIR, M.D., F.A.C.S." Kassir's administrative assistant, Araksya Hovespyan, a receptionist and cosmetic coordinator, took photographs of the plaintiff's face to show her the current cosmetic appearance of her nose and to "morph" the appearance of her nose to display how she might look after cosmetic surgery, although the parties dispute whether the photographs also were taken for the purpose of visualizing the plaintiff's septum. According to the plaintiff, at that consultation, Kassir assured her that if her septum was, in fact, deviated, he would straighten it.

The plaintiff thereafter returned to Kassir's office on December 22, 2015, at which time he advised her of the indications, risks, and benefits of, and alternatives to, a septo-rhinoplasty

3

procedure. The parties vigorously dispute whether the plaintiff consented to proceed with the procedures as she understood them, or as the Kassir defendants claim to have understood them, or as they may have been described in relevant consent forms.

According to the Kassir defendants, the plaintiff evinced her understanding that those procedures might result in an unsatisfactory cosmetic appearance or a recurrence of her original breathing and congestion disorders, although the plaintiff disputed whether she evinced her understanding as to her cosmetic appearance. As the Kassir defendants described it, the plaintiff, in connection with the non-cosmetic portion of the dual procedure, consented only to the straightening of her septum, but not to a procedure involving her sinuses. The plaintiff, however, asserted that it was not her understanding that she was consenting "only" to the straightening of her septum. While the Kassir defendants emphatically stated that the plaintiff did not consent to any surgical procedures on her sinuses, the plaintiff claimed that she did not refuse such consent, and that, in fact, she and those defendants never discussed any such consent. The Kassir defendants asserted that, while Kassir promised to repair any problem that he observed during the procedure, they did not contemplate that Kassir would examine the plaintiff's sinuses or elements of her ostiomeatal complex, while the plaintiff asserted that Kassir never ruled out examining or operating on her sinuses if that were necessary to relieve her breathing difficulties.

The plaintiff returned to Kassir's office on January 19, 2016 for a pre-operative visit, at which time, according to the Kassir defendants, Masoud Mojarradi, M.D., who was then employed by Kassir's practice as an administrator, provided the plaintiff with a package containing consent forms. The plaintiff disputed that Dr. Mojarradi provided her with such a package or such forms. Dr. Mojarradi testified at his deposition that he witnessed the plaintiff signing and initialing the consent forms via an electronic pad. He stated that, due to a "linkage issue" in the software, her one electronic signature and one electronic set of initials, appearing to depict the letters "RR" rather than "AK," inadvertently were copied onto numerous signature

4

lines on the septo-rhinoplasty form that were applicable not only to the plaintiff, but to nurses and anesthesiologists. The Kassir defendants conceded that the consent form included a paragraph designed to encompass every otolaryngology procedure performed by the office, in addition to the septo-rhinoplasty that was being considered for the plaintiff. The plaintiff, however, vigorously denied at her deposition that the one signature or set of initials that were inscribed onto the electronic pad were hers, contending that the signature and initials were forged on the electronic pad, that she never had seen that signature on those documents prior to the surgery, and that the consent form that she did sign several weeks later "says nothing about intent or design to encompass every ENT procedure."

On February 9, 2016, the day scheduled for the surgery, the plaintiff executed a different surgical informed consent form from those allegedly provided to her on January 19, 2016, in which she allegedly confirmed that Kassir warned her of the risks and consequences of the procedure, informed her of the alternative treatments thereto, described the risks of the...