Opinion
2013-04-11
Elba NEGRON, etc., Plaintiff–Respondent, v. ST. BARNABAS NURSING HOME, et al., Defendants–Appellants.
Garbarini & Scher, PC, New York (William D. Buckley of counsel), for appellants. Langsam Law, LLP, New York (Elise Hagouel Langsam of counsel), for respondent.
Garbarini & Scher, PC, New York (William D. Buckley of counsel), for appellants. Langsam Law, LLP, New York (Elise Hagouel Langsam of counsel), for respondent.
GONZALEZ, P.J., FRIEDMAN, ABDUS–SALAAM, ROMÁN, CLARK, JJ.
Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered March 9, 2012, which, to the extent appealed from as limited by the briefs, upon reargument, denied defendant nursing home's motion for summary judgment, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint as against the nursing home.
In this medical malpractice and negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ). The medical records support defendants' expert's opinion that decedent's chronic skin ulcers, gangrene and above-the-knee amputations, were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors.
In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff submitted the conclusory and speculative affirmation of an unnamed expert who failed to identify specific departures made by the nursing home, when other actions should have been taken by the nursing home and by whom, and how the results would have been different had those actions been taken ( see Alvarez, 68 N.Y.2d at 327, 508 N.Y.S.2d 923, 501 N.E.2d 572;Abalola v. Flower Hosp., 44 A.D.3d 522, 843 N.Y.S.2d 615 [1st Dept. 2007] ). These failures are especially troublesome, given plaintiff's expert's concession that decedent's preexisting conditions placed him at an increased risk for the conditions at issue. Moreover, the expert failed to address the evidence supporting vascular involvement and failed to establish that the nursing home's negligence, and not the natural progress of decedent's diseases and conditions, was a substantial factor in producing the injury ( see Aparicio v. Goldberg, 94 A.D.3d 502, 503, 942 N.Y.S.2d 58 [1st Dept. 2012];Mortensen v. Memorial Hosp., 105 A.D.2d 151, 158, 483 N.Y.S.2d 264 [1st Dept. 1984] ).