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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF KINGS
----------------------------------------------------- ¬------------X
KLARA KHUTORYANSKAYA,
Index No.: 521431/2016
Plaintiff
AFFIRMATION IN
OPPOSITION TO
-against-
DEFENDANT'S MOTION
LASER & MICROSURGERY, P.C. d/b/a NY LASIK
FOR SæY
EDGMENT
LASER & MICROSURGERY INSTITUTE, BROOKLYN
EYE SURGERY CENTER L.L.C. d/b/a BROOKLYN EYE
(ECF Motion #8)
SURGERY CENTER, ALEXANDER RAB1NOVICH, M.D.,
and JOHN AND JANE DOES 1 - 100 (Said names being
fictitious,itbeing the intention of Plaintiff to designate any and
all individuals, parties, corporations or entities, ifany, having
or claiming a knowledge of the foregoing complaint),
Defendants.
------------------------------------------- X
ALEXANDER KARASIK, ESQ., an attorney duly admitted to practice in the courts of the
State of New York, hereby affirms under penalty of perjury that the following factual statements
are true, and as to such statements made on information and belief, he has good cause to believe
them to be true and accurate.
1. I am an attorney-at-law duly admitted to practice in the highest courts of the State
of New York and a member of the firm of KARASIK LAW GROUP, P.C., attorneys of record for
the plaintiff KLARA KHUTORYANSKAYA in this action.
2. I have knowledge of the facts herein set forth based upon a review of the documents
in the file.
3. I submit this affirmation in opposition to Defendant's, ALEXANDER
RABINOVICH, M.D.'s, (hereinafter referred to as "Moving Defendant and/or "Dr. Rabinovich")
motion for summary judgment dismissing the complaint.
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BRIEF STATEMENT OF FACTS
4. Plaintiff was initially a patient of LASER & MICROSURGERY PC for general
ophthalmology, and any and all eye-related concerns.
5. On August 1, 2016, plaintiff saw Dr. Rabinovich because she wanted a consultation
regarding ptosis of her lids (droopy eyelids) and a cyst inside her lower lefteyelid. (See Exhibit
E). Plaintiff complained that the cyst had appeared to have grown, itwas bothering her, and she
did not like the appearance. (See Moving Papers, Exhibit E) 14. Dr. Rabinovich agreed to remove
the cyst.
6. On August 22, 2016, Dr. Rabinovich performed a cyst removal surgery at the
Brooklyn Eye Surgery Center (See Moving Papers, Exhibit M). The facility was chosen by Dr.
Rabinovich.
7. Just prior to surgery starting the cyst removal surgery, Nurse Cahill put three
different types of drops in the surgical eye. The firstdrop was for numbing, the second drop was
an antibiotic, and the third drop was Betadine. (See Exhibit K pp. 64-66) After anesthesia and
sedation are administered, a corneal shield is placed over the patient's left eye. (See Moving Papers
Exhibit M) The corneal shield has a small square tab so that the Dr. Rabinovich was able to grasp
the shield with a surgical instrument to then place itover the cornea prior to his excising the cyst.
(See Moving Papers Exhibit K pp. 34-35) 17. Nurse Cahill testified that technicians reuse the
corneal shield, and prior to surgery place shield in a CIDEX solution for at least 90 minutes. Just
prior to surgery, the technician would bring the corneal shield, stillin the CIDEX, into the
operating room where the shield is taken out of the CIDEX solution and put into a cup with saline
solution (salt & water) to rinse the shield and then taken out and put into a cup of plain water. The
shield is not rinsed under water or washed hand. (See Papers Exhibit K pp. 13-
running by Moving
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14, 22-23, 34-35, 37-39, 58, 61-63) Nurse Cahill also testified that all the other instruments used
in this were placed in a heating device to sterilize and washed by hand, but not the corneal
surgery
shield. (See Moving Papers Exhibit K pp. 13-14, 22-23, 34-35, 37-39, 58, 61-63). Prior to the start
of surgery, Dr. Rabinovich took the shield, without examining it,and placed it over Plaintiff's
cornea. He then began the cyst removal procedure, and afterwards removed the shield.
8. After Plaintiff came out of anesthesia, she saw that her eye was extremely swollen.
(See Moving Papers, Exhibit E 10/16/18, pp. 86-91). She then proceeded to contact an employee
of Brooklyn Eye Surgery and asked if she can speak with Dr. Rabinovich. She was then informed
that Dr. Rabinovich was already in another surgery and was unavailable. (Id. at pp. 91-95).
9. Later on, Plaintiff was contacted by Nurse Antonia, who speaks Russian within
twenty-four (24) hours after the surgery. (See Moving Papers Exhibit K 53-55, Exhibit M) Plaintiff
complained to Nurse Antonia that she had pain to her eyelid. Nurse Antonia advised plaintiff to
take Tylenol for the pain. Plaintiff was told to contact her doctor's office ifpain persists or worsens.
(See Moving Papers Exhibit K 53-55, Exhibit M) 19. Plaintiff was scheduled to see Dr. Rabinovich
one week after the surgery for follow-up. However, she contacted Dr. Rabinovich and complained
of severe pain after the procedure. Dr. Rabinovich told Plaintiff to go to Laser & Microsurgery
P.C. the next day.
10. The next day, August 23, 2016, Plaintiff went to Laser PC and was seen by Dr.
Bley. (See Moving Papers Exhibit L). Dr. Rabinovich was unavailable to see Plaintiff on that day.
Plaintiff complained of pain and a Dr. Bley placed a Prokera on the cornea in the left eye. Plaintiff
was diagnosed with a corneal abrasion at this visit. (See Moving Papers Exhibit L).
11. On August 24, 2016, Plaintiff went back to Laser & Microsurgery P.C. and saw Dr.
Bley to follow up and her condition was the same. (See Moving Papers Exhibit L) 20. On August
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25, 2016, Plaintiff went to see Dr. Rabinovich at his New York Eye and Ear satellite office. (See
Moving Papers Exhibit L) He noted that her visual acuity was Counting Fingers at 1 foot in the
left eye. The Prokera was removed. Plaintiff complained of pain, discomfort, tearing and decreased
visual acuity in the left eye. Plaintiff was continued on Gatifloxacin (antibiotic) and to start
Lotemax (anti-inflammatory) and follow-up in three days or sooner if necessary. Dr. Rabinovich
referred Plaintiff to a corneal specialist. This was the lasttime plaintiff saw Dr. Rabinovich because
she was followed by corneal specialists. (See Moving Papers Exhibit L).
12. Plaintiff and Dr. Rabinovich did speak numerous times over the course of a month
regarding her follow-up care with corneal specialist that he referred her to, specialists Dr. Edward
Rubinchik and Dr. Angie Wen. (See Moving Papers Exhibit E -11/7/18-pp. 224-225, Exhibit H
pp. 98- 22. Plaintiff requested letters from Dr. Rabinovich her to the gym and
99) regarding going
swimming. On September 12, 2016, Dr. Rabinovich wrote a letter excusing plaintiff from the gym
and swimming due to problems with her left eye post-surgery, and on October 31, 2016, he wrote
her letter stating that her post-operative course complicated by inflammation has subsided and she
is able to return to the gym and swimming. (See Moving Papers Exhibit H pp.102-106, Exhibit L)
13. Initially, plaintiff went to see Dr. Edward Rubinchik on August 26, 2016 by the
referral of Dr. Rabinovich. (See Moving Papers Exhibit N). Her visual acuity was 20/100 in the
left eye and she was wearing the BCL. Plaintiff went two more times and her condition was
improving. Dr. Rubinchik noted that a culture taken had come back with slight growth of staph
lugdunensis and plaintiff was put on antibiotics. She requested a different doctor from Dr.
Rabinovich. He recommended Dr. Angie Wen. (See Moving Papers Exhibit N).
14. On September 8, 2016 plaintiff went to Dr. Wen. Plaintiff complained that her left
eye was very swollen, has lot of pain, she cannot see out of it,and bright light bothers her. ( See
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Moving Papers Exhibit O) The medications she was currently taking for the were Erythromycin
and Vigamox for the eye. The impression by Dr. Wen was likely chemical burn of the left eye
cornea which needed mild debridement. On September 7, 2016, Plaintiffs ocular medications at
that time was Maxitrol only. Her visual acuity was 20/80 uncorrected in the left eye. The
impression was chemical burn of left eye. Dr. Wen performed two debridements on the cornea.
(See Moving Papers Exhibit O)
15. On or about September 19, 2016, plaintiff was examined by Dr. Fell. Dr. Fell is not
specifically a cornea specialist but does general ophthalmology and cataract surgery. (See Moving
Papers Exhibit P) Plaintiffs visual acuity in the left eye was 20/150 and the right eye was 20/25.
Everything else was normal except the cornea. The record noted there was stillsome swelling in
the cornea, some staining and striae. The corneal edema of the left eye showed some epithelial
defects. Dr. Fell referred plaintiff to Dr. John Seedor, corneal specialist.
16. Plaintiff continued to follow-up with Dr. Fell while being treated by Dr. Seedor and
on February 17, 2017, her visual acuity in the left eye was 20/60 uncorrected, pinhole 20/40.
Plaintiffs cataract in left eye worsened to 3+ and was listed as main visual problem. (See Exhibit
P).
17. On September 19, 2016, plaintiffs initialvisit with Dr. Seedor her visual acuity was
20/200 in the left eye, no improvement. (See Moving Papers Exhibit Q) The anterior segment
exam was normal except for the conjunctiva of the lefteye showed a diffuse 2+ injection, 6 and 9
o'clock just posterior to the limbus is epi defect overlaying ischersic sclera and be
appearing may
some scleral lysis inferiorly. The cornea has patchy plaque like deposits on the cornea inside the
limbus from 6:00 to 10:00 centrally PEK and mild underlying edema with 1+ Descemet's Folds.
Epithelial cell count for cornea was 2251 in the left eye and 2066 in the right. Impression was
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persistent epithelial defect of the left cornea, and anterior sclerosis of the left eye. Dr. Seedor noted
plaintiff was suspect acute perilimbal injury with resultant epithelial breakdown of the cornea. Dr.
Seedor questioned whether itwas a chemical or thermal injury. A culture was taken to see if itwas
bacterial, fungus or herpes causing the corneal damage. Plaintiff was given a prescription of
Vigamox 1.5 percent and Pred Forte at 1 percent drops to put in the lefteye. She was to stop the
Maxitrol. Possible need for a superficial keratectomy with amniotic membrane ifno improvement.
(See Moving Papers Exhibit Q) 27.
18. On September 23, 2016, Plaintiff had a follow-up visit with Dr. Seedor and itwas
noted that she thought her eye felta littlebetter that day. (See Moving Papers Exhibit Q) The visual
acuity of the left eye was actually 20/60 uncorrected, pinholed 20/50. The anterior segment exam
was same as previous visit. The cultures taken at last exam were negative to date, and acuity
improved. Plaintiff was using Vigamox. Stable anterior segment. (See Moving Papers Exhibit Q)
On September 28, 2016. Dr. Seedor stilllists that the corneal defect is from unknown etiology.
Her visual acuity was 20/40 for the left eye uncorrected. Impression was persistent epithelial defect
of the comea. (See Moving Papers Exhibit Q).
19. Plaintiff continued to follow with Dr. Seedor over the next few months. Plaintiff
was also given a BCL to wear for continued healing. In November, Plaintiff was no longer wearing
the BCL. Her left eye visual acuity was uncorrected 20/40-2, pinhole to 20/30-2. The cornea
showed negative staining around the plaques nasal inferior and the epithelial defect healed.
EXPERT TESTIMONY SUMMARIES
20. Plaintiff's expert, Dr. Joseph Ciolino reviewed a multitude of Plaintiff's medical
records, photographs, the affidavit of the expert for co-defendant Dr. Rabinovich, and the
testimony of Nurse Cahill. (The Affirmation of Joseph B. Ciolino, M.D. is attached hereto as
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Exhibit A.) Dr. Ciolino affirms that ocular toxicity has been reported to be caused by the improper
handling of the CIDEX solution. Id He further notes that Plaintiff's injury is a chemical burn of
the cornea, and he affirms with a reasonable degree of medical certainty that it is reasonable to
conclude that her injury was caused by the CIDEX used to sterilize the corneal shield. Id
21. Dr. Rabinovich's Expert, Amilia Schrier, M.D., confirms in her affidavit that
CIDEX can be irritating and even cause more severe reactions/damage if comes in direct contact
with the eye. Schrier Aff p. 3, para. 7. Dr. Schrier's medical opinion is that Plaintiff's injury was
chemical and consistent with a shield treated with CIDEX and that was not properly rinsed. Id at
p. 11, para.24. It should be noted that Dr. Schrier physically examined Plaintiff during an
Independent Medical Examination (IME) as requested by Defendant Dr. Rabinovich's counsel,
however the IME report of that examination has not been provided to Plaintiff to this date, despite
multiple requests.
22. Dr. Schrier further states that on the day of injury, Dr. Rabinovich entered the
surgical field, and all his instruments he needed for the procedure were waiting for him on trays,
including the corneal shield. Id at p. 5, para. 9. However, Dr. Rabinovich did not examine any of
the instruments, including the shield. As he was the one who placed the shield on Plaintiff's eye,
he should've examined it,however briefly, to make sure it was clean and dry. Additionally, he
should have known about the irritating and damaging properties of CIDEX and should've inquired
with the facility about the usage of CIDEX and either requested a different type of cleaner, or a
single-use type of shield for his client.
23. Co-defendant's BROOKLYN EYE SURGERY CENTER'S, expert, Jay
Fleischman, M.D., states in his affidavit in opposition to this motion, that itis standard custom and
practice that the surgeon chooses all equipment and supplies necessary for surgery, and that it's
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the duty of the surgeon to supervise all nurses and technicians during procedure. Fleishman Aff in
Opp., p. 2, para. 7. He then goes on to say that itis ultimately the surgeon's duty to recognize and
ensure the equipment and supplies are the appropriate instruments to conduct the surgical
procedure. Id Dr. Fleishman then further speculates, without any factual basis, that Plaintiff's
injury occurred outside the procedure performed by Dr. Rabinovich and might not even be of a
chemical nature.
24. As such, there are multiple conflicting expert opinions as to the nature of Plaintiff's
injury and the responsibility of each defendant for the injury, creating a bona fide issue of material
experts."
fact in the form of "the battle of the Therefore, summary judgment is inappropriate at
this time and the motion must be denied.
LEGAL ARGUMENT
25. Section 3212 of the C.P.L.R states, in itspertinent part, that a Summary Judgment
motion must be "denied if any party shall show facts sufficient to require a trial of any issue of
fact."
The body of case law handed down upon the issue at bar defines the function of the Court in
upon applications for Judgment to be one of issue finder -- rather than issue
deliberating Summary
determination, Esteve v. Abad, 271 A.D. 725 (N.Y. App. Div. 1947). The case law admonishes
that the entry of Summary Judgment is "[a] drastic remedy and should not be granted where there
fact."
was any doubt as to the existence of a triable issue of Moskowitz v. Garlock, 259 N.Y.S.2d
1003 (N.Y. App. Div. 3d Dep't 1965).
26. The reticence of the Courts to grant Summary Judgment is premised upon the
principles which are eloquently set forth in Wagner v. Zeh, 256 N.Y.S.2d 227 affd 26 A.D.
729(N.Y. Sup. Ct. 1965). In Wagner, the Court stated them as follows:
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"A remedy which precludes a litigant from presenting his evidence for
consideration by a jury, or even a judge, is necessarily one which should be used
sparingly, for itsmere existence tends to alter our jurisprudential concept of a "day
in Court . .Suilliiiaiy Judgment is a harsh remedy and the requirement of the rule
should be shortly complied with in order to entitle a party to that relief. . . To grant
Suilliiiary Judgment, itmust clearly appear that no material and triable issue of fact
is presented. This drastic remedy should not be granted where there is any doubt as
issues."
to the existence of such Id.
27. Itis well settled that Summary Judgment is a drastic remedy which is the procedural
equivalent of a plenary trial.Falk v. Goodman, 7 N.Y.2d 87 (1959). In order to obtain such drastic
relief, the movant must unequivocally demonstrate that there are no triable issues of fact and that
as a matter of law the Court is warranted in directing judgment in its favor. Nicholas Dimenna &
Sons. Inc. v. City of New York, 301 N.Y. 118, (1950); Glick & Dolleck. Inc. v. Tri-Pac Export
Corp., 22 N.Y.2d 439, (1968); Piecyk v. Otis Elevator Co., 164 A.D.2d 816, 817, (1st Dep't 1990).
28. Where the moving party fails to conclusively demonstrate a prima facie showing of
entitlement to judgment as a matter of law, the motion must be denied regardless of the sufficiency
of the opposing papers. See Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851 (1985); County
Oil Co.. Inc. v. Bayview Owners Coro , 181 A.D.2d 809 (2d Dep't 1992); Downing v. Screiber,
176 A.D.2d 781, 575 N.Y.S.2d 109 (2d Dep't 1991).
29. Since a Court is not authorized to try factual issues in a summaiy manner, its
function on a motion for Summary Judgment is issue finding, not issue resolution. Dauman
Displays, Inc. v. Masturzo, 168 A.D.2d 204 (1st Dep't 1990); Decision Concepts. Inc. v. Citibank.
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N.A., 91 A.D.2d 965 (1st Dep't 1983); Esteve v. Abad, 68 N.Y.S.2d 322 (1st Dep't 1947). In
exercising that function, the non-moving party's pleadings and opposing papers must be accepted
as true and the decision must be made on the version of the facts most favorable to the nonmoving
party. Creighton v. Milbauer, 191 A.D.2d 162 (1st Dep't 1991); McLaughlin v. Thaima Realty
Corp., 161 A.D.2d 383, (1st Dep't 1990). The non-moving party is entitled to every favorable
inference which can be fairly drawn from the papers. Chiarello v. Harold Sylvan, P.C., 161 A.D.2d
948 (1st Dep't 1988), and the Court must construe the evidence in the light most favorable to the
non-moving party. Waldron v. Wild, 96 A.D.2d 190 (4th Dep't 1983); Weiss v. Garfield, 21
A.D.2d 156 (3d Dep't 1964).
30. Additionally, in accordance with settled case law confining the scope of CPLR
finding,"
relief to "issue it has been held that issues of credibility are not to be resolved or
determined by the Court upon motions for Summary Judgment. Michelson v. Babcock, 593
N.Y.S.2d 657(N.Y. App. Div. 4th Dep't 1993); First National Bank of Dolgeville N.Y. v. Monz,
41 N.Y.S.2d 92(N.Y. Sup. Ct. 1943); M.W. Zack Metal Co. v. Federal Ins. Co., 430 N.Y.S.2d
179(N.Y. App. Div. 4th Dep't 1980).
31. Fathermore, if different inferences can be drawn from the facts, Summary
Judgment is appropriately denied. Supan v. Michelfeld, 468 N.Y.S.2d 384 (2d Dep't 1983). As
repeatedly held, the remedy of Summary Judgment is a drastic one, which should not be granted
where there is any doubt as to the existence of a triable issue...[citation omitted], or where the issue
is even arguable...[citation omitted], since it serves to deprive a party of his day in court. Relief
should be granted only where no genuine issue of triable fact exists... [citation omitted]... Further,
on a Defendant's motion for summary judgment, opposed by Plaintiff, we are required to accept
the Plaintiff s pleadings as true, and our decision must be made on the version of the facts most
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[plaintiffj..."
favorable to ... Henderson v. City of New York, 178 A.D.2d 129 (N.Y. App. Div. 1st
Dep't 1991).
32. In the case of Ugarriza v. Schmieder, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979), the
Court of Appeals noted that summary judgment in negligence cases should be not be granted
lightly. The Court held:
Although there once were significant limitations upon the type of action in which summary
judgment was available (see Siegel, New York Practice, s 280), this is no longer true (see
CPLR 3212). Indeed, as of January 1, 1979, the final prohibition was removed, and itis
now possible for a plaintiff to obtain summary judgment even in a matrimonial action
(L.1978, ch. 532). That summmy judgment is an available remedy in an appropriate
negligence case has been accepted since 1959 (see 4 Weinstein Korn -
Miller,
N.Y.Civ.Prac., par. 3212.03). Summary judgment has been termed a drastic measure,
however, since itdeprives a party of his day in court and will normally have Res judicata
effects (see Siegel, New York Practice, s 287). Thus, itmay be granted without a trial only
if no genuine, triable issue of fact is presented (Werfel v. Zivnostenska Banka, 287 N.Y.
91, 38 N.E.2d 382; CPLR 3212, subds. (b), (c)).Negligence cases by their very nature do
not usually lend themselves to summary judgment, since often. even if all parties are in
agreement as to the underlying facts, the very question of negligence is itselfa question for
jury determination. Only if it can be concluded as a matter of law that defendant was
action"
negligent. may summary iudgment be granted in a negligence [emphasis added] ld.
at 474, 414 N.Y.S.2d at 305.
opposes"
33. Where, "as here, a nonmovant's expert affidavit "squarely the affirmation
parties'
of the moving expert, the result is "a classic battle of the experts that is properly leftto a
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resolution"
jury for (Blendowski v. Wiese, 158 A.D.3d 1284, 1286, 71 N.Y.S.3d 274 [4th Dept.
)."
2018] [internal quotation marks omitted] Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73
N.Y.S.3d 691, 692 (N.Y. App. Div. 2018); Vargas v. Sabri, 115 A.D.3d 505, 505-506, 981
N.Y.S.2d 914 [1st Dept.2014). In the case at bar, we have three experts, all with differing opinions.
The non-moving co-defendant's expert states that the surgeon is the one responsible for the actions
of the supporting staff and the for choosing and inspecting the equipment. This is in "square
opposition"
to the movant's expert affidavit, which argues that itis not the surgeon's responsibility
to inspect the equipment, and the proper standard practice is that the support staff is in charge of
making sure the equipment is safe for use by the surgeon. Both movant's and Plaintiff's experts
agree that the injury is chemically based and the result of sterilization of the corneal shield with
CIDEX that was not properly rinsed off. Non-movant defendant's expert opines that the injury
might not even be chemical.
34. It ispatently clear that the three experts have opinions that squarely oppose those
experts"
of their colleagues. Thus, itis a classic "battle of the which must be presented to the jury
who will resolve the battle based on credibility of each of the experts. Therefore, summary
judgment must be denied, because the movant failed to meet their prima facie burden. Or, in the
alternative, ifthe movant did meet their burden, it has been properly rebutted by contradicting
non-movants'
affidavits of the experts, creating a genuine issue of material fact. Regardless of the
approach, the summary judgment motion must be denied in itsentirety.
35. Plaintiff respectfully requests that Defendant Dr. Rabinovich's motion for summary
judgment be denied for the reasons outlined above.
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WHEREFORE, it isrespectfully requested that this Court deny Defendant's motion for
summary judgment motion in its entirety, together with such other and further relief as this Court
deems just and proper.
Dated: January 14, 2020
Brooklyn, New York
Karasik Law Group, PC
lexa e Karasik, Esq.
Attorn y for Plaintiff
Klara Khutoryanskaya
1810 Voorhies Avenue, Suite 9
Brooklyn, NY 11235
Tel.: (718) 502-9112
TO: Wilson, Elser, Moskowitz, Edelman & Dicker LLP
Attorneys for Defendant
Brooklyn Eye Surgery Center L.LC.
d/b/a Brooklyn Eye Surgery Center
1133 Westchester Avenue
White Plains, New York 10604
Tel.: (914) 323-7000
Ekblom & Partners LLP
Attorneys for Defendant
Alexander Rabinovich, M.D.
21"
850 Third Avenue, Floor
New York, New York 10022
Tel.: (646) 677-6000
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NO. 184 RECEIVED NYSCEF: 01/15/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS ----------------------------------------------------- ¬------------X KLARA KHUTORYANSKAYA, Index No.: 521431/2016 Plaintiff AFFIRMATION IN OPPOSITION TO -against- DEFENDANT'S MOTION LASER & MICROSURGERY, P.C. d/b/a NY LASIK FOR SæY EDGMENT LASER & MICROSURGERY INSTITUTE, BROOKLYN EYE SURGERY CENTER L.L.C. d/b/a BROOKLYN EYE (ECF Motion #8) SURGERY CENTER, ALEXANDER RAB1NOVICH, M.D., and JOHN AND JANE DOES 1 - 100 (Said names being fictitious,itbeing the intention of Plaintiff to designate any and all individuals, parties, corporations or entities, ifany, having or claiming a knowledge of the foregoing complaint), Defendants. ------------------------------------------- X ALEXANDER KARASIK, ESQ., an attorney duly admitted to practice in the courts of the State of New York, hereby affirms under penalty of perjury that the following factual statements are true, and as to such statements made on information and belief, he has good cause to believe them to be true and accurate. 1. I am an attorney-at-law duly admitted to practice in the highest courts of the State of New York and a member of the firm of KARASIK LAW GROUP, P.C., attorneys of record for the plaintiff KLARA KHUTORYANSKAYA in this action. 2. I have knowledge of the facts herein set forth based upon a review of the documents in the file. 3. I submit this affirmation in opposition to Defendant's, ALEXANDER RABINOVICH, M.D.'s, (hereinafter referred to as "Moving Defendant and/or "Dr. Rabinovich") motion for summary judgment dismissing the complaint. 1 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 BRIEF STATEMENT OF FACTS 4. Plaintiff was initially a patient of LASER & MICROSURGERY PC for general ophthalmology, and any and all eye-related concerns. 5. On August 1, 2016, plaintiff saw Dr. Rabinovich because she wanted a consultation regarding ptosis of her lids (droopy eyelids) and a cyst inside her lower lefteyelid. (See Exhibit E). Plaintiff complained that the cyst had appeared to have grown, itwas bothering her, and she did not like the appearance. (See Moving Papers, Exhibit E) 14. Dr. Rabinovich agreed to remove the cyst. 6. On August 22, 2016, Dr. Rabinovich performed a cyst removal surgery at the Brooklyn Eye Surgery Center (See Moving Papers, Exhibit M). The facility was chosen by Dr. Rabinovich. 7. Just prior to surgery starting the cyst removal surgery, Nurse Cahill put three different types of drops in the surgical eye. The firstdrop was for numbing, the second drop was an antibiotic, and the third drop was Betadine. (See Exhibit K pp. 64-66) After anesthesia and sedation are administered, a corneal shield is placed over the patient's left eye. (See Moving Papers Exhibit M) The corneal shield has a small square tab so that the Dr. Rabinovich was able to grasp the shield with a surgical instrument to then place itover the cornea prior to his excising the cyst. (See Moving Papers Exhibit K pp. 34-35) 17. Nurse Cahill testified that technicians reuse the corneal shield, and prior to surgery place shield in a CIDEX solution for at least 90 minutes. Just prior to surgery, the technician would bring the corneal shield, stillin the CIDEX, into the operating room where the shield is taken out of the CIDEX solution and put into a cup with saline solution (salt & water) to rinse the shield and then taken out and put into a cup of plain water. The shield is not rinsed under water or washed hand. (See Papers Exhibit K pp. 13- running by Moving 2 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 14, 22-23, 34-35, 37-39, 58, 61-63) Nurse Cahill also testified that all the other instruments used in this were placed in a heating device to sterilize and washed by hand, but not the corneal surgery shield. (See Moving Papers Exhibit K pp. 13-14, 22-23, 34-35, 37-39, 58, 61-63). Prior to the start of surgery, Dr. Rabinovich took the shield, without examining it,and placed it over Plaintiff's cornea. He then began the cyst removal procedure, and afterwards removed the shield. 8. After Plaintiff came out of anesthesia, she saw that her eye was extremely swollen. (See Moving Papers, Exhibit E 10/16/18, pp. 86-91). She then proceeded to contact an employee of Brooklyn Eye Surgery and asked if she can speak with Dr. Rabinovich. She was then informed that Dr. Rabinovich was already in another surgery and was unavailable. (Id. at pp. 91-95). 9. Later on, Plaintiff was contacted by Nurse Antonia, who speaks Russian within twenty-four (24) hours after the surgery. (See Moving Papers Exhibit K 53-55, Exhibit M) Plaintiff complained to Nurse Antonia that she had pain to her eyelid. Nurse Antonia advised plaintiff to take Tylenol for the pain. Plaintiff was told to contact her doctor's office ifpain persists or worsens. (See Moving Papers Exhibit K 53-55, Exhibit M) 19. Plaintiff was scheduled to see Dr. Rabinovich one week after the surgery for follow-up. However, she contacted Dr. Rabinovich and complained of severe pain after the procedure. Dr. Rabinovich told Plaintiff to go to Laser & Microsurgery P.C. the next day. 10. The next day, August 23, 2016, Plaintiff went to Laser PC and was seen by Dr. Bley. (See Moving Papers Exhibit L). Dr. Rabinovich was unavailable to see Plaintiff on that day. Plaintiff complained of pain and a Dr. Bley placed a Prokera on the cornea in the left eye. Plaintiff was diagnosed with a corneal abrasion at this visit. (See Moving Papers Exhibit L). 11. On August 24, 2016, Plaintiff went back to Laser & Microsurgery P.C. and saw Dr. Bley to follow up and her condition was the same. (See Moving Papers Exhibit L) 20. On August 3 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 25, 2016, Plaintiff went to see Dr. Rabinovich at his New York Eye and Ear satellite office. (See Moving Papers Exhibit L) He noted that her visual acuity was Counting Fingers at 1 foot in the left eye. The Prokera was removed. Plaintiff complained of pain, discomfort, tearing and decreased visual acuity in the left eye. Plaintiff was continued on Gatifloxacin (antibiotic) and to start Lotemax (anti-inflammatory) and follow-up in three days or sooner if necessary. Dr. Rabinovich referred Plaintiff to a corneal specialist. This was the lasttime plaintiff saw Dr. Rabinovich because she was followed by corneal specialists. (See Moving Papers Exhibit L). 12. Plaintiff and Dr. Rabinovich did speak numerous times over the course of a month regarding her follow-up care with corneal specialist that he referred her to, specialists Dr. Edward Rubinchik and Dr. Angie Wen. (See Moving Papers Exhibit E -11/7/18-pp. 224-225, Exhibit H pp. 98- 22. Plaintiff requested letters from Dr. Rabinovich her to the gym and 99) regarding going swimming. On September 12, 2016, Dr. Rabinovich wrote a letter excusing plaintiff from the gym and swimming due to problems with her left eye post-surgery, and on October 31, 2016, he wrote her letter stating that her post-operative course complicated by inflammation has subsided and she is able to return to the gym and swimming. (See Moving Papers Exhibit H pp.102-106, Exhibit L) 13. Initially, plaintiff went to see Dr. Edward Rubinchik on August 26, 2016 by the referral of Dr. Rabinovich. (See Moving Papers Exhibit N). Her visual acuity was 20/100 in the left eye and she was wearing the BCL. Plaintiff went two more times and her condition was improving. Dr. Rubinchik noted that a culture taken had come back with slight growth of staph lugdunensis and plaintiff was put on antibiotics. She requested a different doctor from Dr. Rabinovich. He recommended Dr. Angie Wen. (See Moving Papers Exhibit N). 14. On September 8, 2016 plaintiff went to Dr. Wen. Plaintiff complained that her left eye was very swollen, has lot of pain, she cannot see out of it,and bright light bothers her. ( See 4 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 Moving Papers Exhibit O) The medications she was currently taking for the were Erythromycin and Vigamox for the eye. The impression by Dr. Wen was likely chemical burn of the left eye cornea which needed mild debridement. On September 7, 2016, Plaintiffs ocular medications at that time was Maxitrol only. Her visual acuity was 20/80 uncorrected in the left eye. The impression was chemical burn of left eye. Dr. Wen performed two debridements on the cornea. (See Moving Papers Exhibit O) 15. On or about September 19, 2016, plaintiff was examined by Dr. Fell. Dr. Fell is not specifically a cornea specialist but does general ophthalmology and cataract surgery. (See Moving Papers Exhibit P) Plaintiffs visual acuity in the left eye was 20/150 and the right eye was 20/25. Everything else was normal except the cornea. The record noted there was stillsome swelling in the cornea, some staining and striae. The corneal edema of the left eye showed some epithelial defects. Dr. Fell referred plaintiff to Dr. John Seedor, corneal specialist. 16. Plaintiff continued to follow-up with Dr. Fell while being treated by Dr. Seedor and on February 17, 2017, her visual acuity in the left eye was 20/60 uncorrected, pinhole 20/40. Plaintiffs cataract in left eye worsened to 3+ and was listed as main visual problem. (See Exhibit P). 17. On September 19, 2016, plaintiffs initialvisit with Dr. Seedor her visual acuity was 20/200 in the left eye, no improvement. (See Moving Papers Exhibit Q) The anterior segment exam was normal except for the conjunctiva of the lefteye showed a diffuse 2+ injection, 6 and 9 o'clock just posterior to the limbus is epi defect overlaying ischersic sclera and be appearing may some scleral lysis inferiorly. The cornea has patchy plaque like deposits on the cornea inside the limbus from 6:00 to 10:00 centrally PEK and mild underlying edema with 1+ Descemet's Folds. Epithelial cell count for cornea was 2251 in the left eye and 2066 in the right. Impression was 5 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 persistent epithelial defect of the left cornea, and anterior sclerosis of the left eye. Dr. Seedor noted plaintiff was suspect acute perilimbal injury with resultant epithelial breakdown of the cornea. Dr. Seedor questioned whether itwas a chemical or thermal injury. A culture was taken to see if itwas bacterial, fungus or herpes causing the corneal damage. Plaintiff was given a prescription of Vigamox 1.5 percent and Pred Forte at 1 percent drops to put in the lefteye. She was to stop the Maxitrol. Possible need for a superficial keratectomy with amniotic membrane ifno improvement. (See Moving Papers Exhibit Q) 27. 18. On September 23, 2016, Plaintiff had a follow-up visit with Dr. Seedor and itwas noted that she thought her eye felta littlebetter that day. (See Moving Papers Exhibit Q) The visual acuity of the left eye was actually 20/60 uncorrected, pinholed 20/50. The anterior segment exam was same as previous visit. The cultures taken at last exam were negative to date, and acuity improved. Plaintiff was using Vigamox. Stable anterior segment. (See Moving Papers Exhibit Q) On September 28, 2016. Dr. Seedor stilllists that the corneal defect is from unknown etiology. Her visual acuity was 20/40 for the left eye uncorrected. Impression was persistent epithelial defect of the comea. (See Moving Papers Exhibit Q). 19. Plaintiff continued to follow with Dr. Seedor over the next few months. Plaintiff was also given a BCL to wear for continued healing. In November, Plaintiff was no longer wearing the BCL. Her left eye visual acuity was uncorrected 20/40-2, pinhole to 20/30-2. The cornea showed negative staining around the plaques nasal inferior and the epithelial defect healed. EXPERT TESTIMONY SUMMARIES 20. Plaintiff's expert, Dr. Joseph Ciolino reviewed a multitude of Plaintiff's medical records, photographs, the affidavit of the expert for co-defendant Dr. Rabinovich, and the testimony of Nurse Cahill. (The Affirmation of Joseph B. Ciolino, M.D. is attached hereto as 6 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 Exhibit A.) Dr. Ciolino affirms that ocular toxicity has been reported to be caused by the improper handling of the CIDEX solution. Id He further notes that Plaintiff's injury is a chemical burn of the cornea, and he affirms with a reasonable degree of medical certainty that it is reasonable to conclude that her injury was caused by the CIDEX used to sterilize the corneal shield. Id 21. Dr. Rabinovich's Expert, Amilia Schrier, M.D., confirms in her affidavit that CIDEX can be irritating and even cause more severe reactions/damage if comes in direct contact with the eye. Schrier Aff p. 3, para. 7. Dr. Schrier's medical opinion is that Plaintiff's injury was chemical and consistent with a shield treated with CIDEX and that was not properly rinsed. Id at p. 11, para.24. It should be noted that Dr. Schrier physically examined Plaintiff during an Independent Medical Examination (IME) as requested by Defendant Dr. Rabinovich's counsel, however the IME report of that examination has not been provided to Plaintiff to this date, despite multiple requests. 22. Dr. Schrier further states that on the day of injury, Dr. Rabinovich entered the surgical field, and all his instruments he needed for the procedure were waiting for him on trays, including the corneal shield. Id at p. 5, para. 9. However, Dr. Rabinovich did not examine any of the instruments, including the shield. As he was the one who placed the shield on Plaintiff's eye, he should've examined it,however briefly, to make sure it was clean and dry. Additionally, he should have known about the irritating and damaging properties of CIDEX and should've inquired with the facility about the usage of CIDEX and either requested a different type of cleaner, or a single-use type of shield for his client. 23. Co-defendant's BROOKLYN EYE SURGERY CENTER'S, expert, Jay Fleischman, M.D., states in his affidavit in opposition to this motion, that itis standard custom and practice that the surgeon chooses all equipment and supplies necessary for surgery, and that it's 7 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 the duty of the surgeon to supervise all nurses and technicians during procedure. Fleishman Aff in Opp., p. 2, para. 7. He then goes on to say that itis ultimately the surgeon's duty to recognize and ensure the equipment and supplies are the appropriate instruments to conduct the surgical procedure. Id Dr. Fleishman then further speculates, without any factual basis, that Plaintiff's injury occurred outside the procedure performed by Dr. Rabinovich and might not even be of a chemical nature. 24. As such, there are multiple conflicting expert opinions as to the nature of Plaintiff's injury and the responsibility of each defendant for the injury, creating a bona fide issue of material experts." fact in the form of "the battle of the Therefore, summary judgment is inappropriate at this time and the motion must be denied. LEGAL ARGUMENT 25. Section 3212 of the C.P.L.R states, in itspertinent part, that a Summary Judgment motion must be "denied if any party shall show facts sufficient to require a trial of any issue of fact." The body of case law handed down upon the issue at bar defines the function of the Court in upon applications for Judgment to be one of issue finder -- rather than issue deliberating Summary determination, Esteve v. Abad, 271 A.D. 725 (N.Y. App. Div. 1947). The case law admonishes that the entry of Summary Judgment is "[a] drastic remedy and should not be granted where there fact." was any doubt as to the existence of a triable issue of Moskowitz v. Garlock, 259 N.Y.S.2d 1003 (N.Y. App. Div. 3d Dep't 1965). 26. The reticence of the Courts to grant Summary Judgment is premised upon the principles which are eloquently set forth in Wagner v. Zeh, 256 N.Y.S.2d 227 affd 26 A.D. 729(N.Y. Sup. Ct. 1965). In Wagner, the Court stated them as follows: 8 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 "A remedy which precludes a litigant from presenting his evidence for consideration by a jury, or even a judge, is necessarily one which should be used sparingly, for itsmere existence tends to alter our jurisprudential concept of a "day in Court . .Suilliiiaiy Judgment is a harsh remedy and the requirement of the rule should be shortly complied with in order to entitle a party to that relief. . . To grant Suilliiiary Judgment, itmust clearly appear that no material and triable issue of fact is presented. This drastic remedy should not be granted where there is any doubt as issues." to the existence of such Id. 27. Itis well settled that Summary Judgment is a drastic remedy which is the procedural equivalent of a plenary trial.Falk v. Goodman, 7 N.Y.2d 87 (1959). In order to obtain such drastic relief, the movant must unequivocally demonstrate that there are no triable issues of fact and that as a matter of law the Court is warranted in directing judgment in its favor. Nicholas Dimenna & Sons. Inc. v. City of New York, 301 N.Y. 118, (1950); Glick & Dolleck. Inc. v. Tri-Pac Export Corp., 22 N.Y.2d 439, (1968); Piecyk v. Otis Elevator Co., 164 A.D.2d 816, 817, (1st Dep't 1990). 28. Where the moving party fails to conclusively demonstrate a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied regardless of the sufficiency of the opposing papers. See Winegrad v. N.Y.U. Medical Center, 64 N.Y.2d 851 (1985); County Oil Co.. Inc. v. Bayview Owners Coro , 181 A.D.2d 809 (2d Dep't 1992); Downing v. Screiber, 176 A.D.2d 781, 575 N.Y.S.2d 109 (2d Dep't 1991). 29. Since a Court is not authorized to try factual issues in a summaiy manner, its function on a motion for Summary Judgment is issue finding, not issue resolution. Dauman Displays, Inc. v. Masturzo, 168 A.D.2d 204 (1st Dep't 1990); Decision Concepts. Inc. v. Citibank. 9 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 N.A., 91 A.D.2d 965 (1st Dep't 1983); Esteve v. Abad, 68 N.Y.S.2d 322 (1st Dep't 1947). In exercising that function, the non-moving party's pleadings and opposing papers must be accepted as true and the decision must be made on the version of the facts most favorable to the nonmoving party. Creighton v. Milbauer, 191 A.D.2d 162 (1st Dep't 1991); McLaughlin v. Thaima Realty Corp., 161 A.D.2d 383, (1st Dep't 1990). The non-moving party is entitled to every favorable inference which can be fairly drawn from the papers. Chiarello v. Harold Sylvan, P.C., 161 A.D.2d 948 (1st Dep't 1988), and the Court must construe the evidence in the light most favorable to the non-moving party. Waldron v. Wild, 96 A.D.2d 190 (4th Dep't 1983); Weiss v. Garfield, 21 A.D.2d 156 (3d Dep't 1964). 30. Additionally, in accordance with settled case law confining the scope of CPLR finding," relief to "issue it has been held that issues of credibility are not to be resolved or determined by the Court upon motions for Summary Judgment. Michelson v. Babcock, 593 N.Y.S.2d 657(N.Y. App. Div. 4th Dep't 1993); First National Bank of Dolgeville N.Y. v. Monz, 41 N.Y.S.2d 92(N.Y. Sup. Ct. 1943); M.W. Zack Metal Co. v. Federal Ins. Co., 430 N.Y.S.2d 179(N.Y. App. Div. 4th Dep't 1980). 31. Fathermore, if different inferences can be drawn from the facts, Summary Judgment is appropriately denied. Supan v. Michelfeld, 468 N.Y.S.2d 384 (2d Dep't 1983). As repeatedly held, the remedy of Summary Judgment is a drastic one, which should not be granted where there is any doubt as to the existence of a triable issue...[citation omitted], or where the issue is even arguable...[citation omitted], since it serves to deprive a party of his day in court. Relief should be granted only where no genuine issue of triable fact exists... [citation omitted]... Further, on a Defendant's motion for summary judgment, opposed by Plaintiff, we are required to accept the Plaintiff s pleadings as true, and our decision must be made on the version of the facts most 10 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 [plaintiffj..." favorable to ... Henderson v. City of New York, 178 A.D.2d 129 (N.Y. App. Div. 1st Dep't 1991). 32. In the case of Ugarriza v. Schmieder, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979), the Court of Appeals noted that summary judgment in negligence cases should be not be granted lightly. The Court held: Although there once were significant limitations upon the type of action in which summary judgment was available (see Siegel, New York Practice, s 280), this is no longer true (see CPLR 3212). Indeed, as of January 1, 1979, the final prohibition was removed, and itis now possible for a plaintiff to obtain summary judgment even in a matrimonial action (L.1978, ch. 532). That summmy judgment is an available remedy in an appropriate negligence case has been accepted since 1959 (see 4 Weinstein Korn - Miller, N.Y.Civ.Prac., par. 3212.03). Summary judgment has been termed a drastic measure, however, since itdeprives a party of his day in court and will normally have Res judicata effects (see Siegel, New York Practice, s 287). Thus, itmay be granted without a trial only if no genuine, triable issue of fact is presented (Werfel v. Zivnostenska Banka, 287 N.Y. 91, 38 N.E.2d 382; CPLR 3212, subds. (b), (c)).Negligence cases by their very nature do not usually lend themselves to summary judgment, since often. even if all parties are in agreement as to the underlying facts, the very question of negligence is itselfa question for jury determination. Only if it can be concluded as a matter of law that defendant was action" negligent. may summary iudgment be granted in a negligence [emphasis added] ld. at 474, 414 N.Y.S.2d at 305. opposes" 33. Where, "as here, a nonmovant's expert affidavit "squarely the affirmation parties' of the moving expert, the result is "a classic battle of the experts that is properly leftto a 11 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 resolution" jury for (Blendowski v. Wiese, 158 A.D.3d 1284, 1286, 71 N.Y.S.3d 274 [4th Dept. )." 2018] [internal quotation marks omitted] Mason v. Adhikary, 159 A.D.3d 1438, 1439, 73 N.Y.S.3d 691, 692 (N.Y. App. Div. 2018); Vargas v. Sabri, 115 A.D.3d 505, 505-506, 981 N.Y.S.2d 914 [1st Dept.2014). In the case at bar, we have three experts, all with differing opinions. The non-moving co-defendant's expert states that the surgeon is the one responsible for the actions of the supporting staff and the for choosing and inspecting the equipment. This is in "square opposition" to the movant's expert affidavit, which argues that itis not the surgeon's responsibility to inspect the equipment, and the proper standard practice is that the support staff is in charge of making sure the equipment is safe for use by the surgeon. Both movant's and Plaintiff's experts agree that the injury is chemically based and the result of sterilization of the corneal shield with CIDEX that was not properly rinsed off. Non-movant defendant's expert opines that the injury might not even be chemical. 34. It ispatently clear that the three experts have opinions that squarely oppose those experts" of their colleagues. Thus, itis a classic "battle of the which must be presented to the jury who will resolve the battle based on credibility of each of the experts. Therefore, summary judgment must be denied, because the movant failed to meet their prima facie burden. Or, in the alternative, ifthe movant did meet their burden, it has been properly rebutted by contradicting non-movants' affidavits of the experts, creating a genuine issue of material fact. Regardless of the approach, the summary judgment motion must be denied in itsentirety. 35. Plaintiff respectfully requests that Defendant Dr. Rabinovich's motion for summary judgment be denied for the reasons outlined above. 12 of 13 FILED: KINGS COUNTY CLERK 01/15/2020 04:52 PM INDEX NO. 521431/2016 NYSCEF DOC. NO. 184 RECEIVED NYSCEF: 01/15/2020 WHEREFORE, it isrespectfully requested that this Court deny Defendant's motion for summary judgment motion in its entirety, together with such other and further relief as this Court deems just and proper. Dated: January 14, 2020 Brooklyn, New York Karasik Law Group, PC lexa e Karasik, Esq. Attorn y for Plaintiff Klara Khutoryanskaya 1810 Voorhies Avenue, Suite 9 Brooklyn, NY 11235 Tel.: (718) 502-9112 TO: Wilson, Elser, Moskowitz, Edelman & Dicker LLP Attorneys for Defendant Brooklyn Eye Surgery Center L.LC. d/b/a Brooklyn Eye Surgery Center 1133 Westchester Avenue White Plains, New York 10604 Tel.: (914) 323-7000 Ekblom & Partners LLP Attorneys for Defendant Alexander Rabinovich, M.D. 21" 850 Third Avenue, Floor New York, New York 10022 Tel.: (646) 677-6000 13 of 13