When the gravamen of the action is the alleged failure to exercise ordinary and reasonable care to ensure that no unnecessary harm befalls a patient, the claim sounds in ordinary negligence. Here, the plaintiff alleges that the defendant "failed to perform the services in a competent and professional manner," and "failed to properly test, perform services, and perform laser hair removal and treat plaintiff." While the defendant offered an expert affidavit in support of its motion to dismiss, the plaintiff raised an issue of fact by submitting photographs of her injuries and provided testimony as to the effects and injuries arising from the defendant's alleged negligence. The defendant's motion was properly denied since the laser treatment was not medical in nature and did not involve specialized knowledge of medical science or diagnosis.
Berkowitz v. Equinox One Park Ave., Inc., NY Slip Op 01553 (1st Dep't March 5, 2020)
Here is the decision.
