Opinion
No. 2020-07081 Index No. 10446/13
05-17-2023
Anzhelika Nisevich, etc., appellant, v. Shorefront Center for Rehabilitation and Nursing Care, respondent, et al., defendant.
Efrom J. Gross, West Hempstead, NY (Michael Dachs of counsel), for appellant. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci of counsel), for respondent.
Efrom J. Gross, West Hempstead, NY (Michael Dachs of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York, NY (Judy C. Selmeci of counsel), for respondent.
VALERIE BRATHWAITE NELSON, J.P., REINALDO E. RIVERA, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Marsha L. Steinhardt, J.), dated January 15, 2020. The order, insofar as appealed from, granted the motion of the defendant Shorefront Center for Rehabilitation and Nursing Care for summary judgment dismissing the complaint insofar as asserted against it.
ORDERED that the order is affirmed insofar as appealed from, with costs.
In 2009, the plaintiff's decedent was admitted to the defendant Shorefront Center for Rehabilitation and Nursing Care (hereinafter Shorefront), in whose care he remained until his death on August 28, 2011. The nursing notes from the evening of his death indicate that the decedent was observed to have an intermittent non-productive cough, which progressed to increased congestion and vomiting. Despite treatment with suction and oxygen via a nasal cannula, within approximately 45 minutes of the initial coughing, the decedent was observed to have no pulse or respiration. At that point, Shorefront's staff provided no further care in accordance with a "do not resuscitate" protocol.
The plaintiff commenced this action against Shorefront, among others, inter alia, to recover damages for medical malpractice, alleging that Shorefront ignored certain of the decedent's symptoms and failed to properly assess, diagnose, and treat the decedent's condition on the day of his death. Shorefront moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated January 15, 2020, the Supreme Court, among other things, granted the motion. The plaintiff appeals.
"A defendant moving for summary judgment in a medical malpractice action must demonstrate the absence of any material issues of fact with respect to at least one of the elements of a cause of action alleging medical malpractice: (1) whether the physician deviated or departed from accepted community standards of practice, or (2) that such a departure was a proximate cause of the plaintiff's injuries" (Rosenthal v Alexander, 180 A.D.3d 826, 827 [citation omitted]; see Zabary v North Shore Hosp. in Plainview, 190 A.D.3d 790, 792-793). "If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof" (Stewart v North Shore Univ. Hosp. at Syosset, 204 A.D.3d 858, 860; see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). To do so, the plaintiff "must submit evidentiary facts or materials to rebut the prima facie showing by the defendant" (Alvarez v Prospect Hosp., 68 N.Y.2d at 324; see Stukas v Streiter, 83 A.D.3d 18, 24). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant [medical provider's] summary judgment motion" (Alvarez v Prospect Hosp., 68 N.Y.2d at 325; see Wijesinghe v Buena Vida Corp., 210 A.D.3d 824, 825-826).
Here, in support of its motion, Shorefront submitted the affirmation of a medical expert who opined that, based upon his review of, inter alia, the decedent's medical records and the pleadings, Shorefront did not depart from accepted medical practice in the treatment and care of the decedent on the day of his death, and that any alleged deviation was not the proximate cause of the decedent's death. The plaintiff does not dispute that Shorefront established its prima facie entitlement to judgment as a matter of law (see generally Frazier v Shteynberg, 208 A.D.3d 458, 459; Stewart v North Shore Univ. Hosp. at Syosset, 204 A.D.3d at 860).
Contrary to the plaintiff's contention, she failed to raise a triable issue of fact in opposition. The expert affirmation submitted in support of her opposition was conclusory, speculative, and unsupported by competent evidence tending to establish proximate causation (see Wijesinghe v Buena Vida Corp., 210 A.D.3d at 826; Palazzolo v Green, 189 A.D.3d 1056, 1059; Wagner v Parker, 172 A.D.3d 954, 955). Accordingly, the Supreme Court properly granted Shorefront's motion for summary judgment dismissing the complaint insofar as asserted against it.
BRATHWAITE NELSON, J.P., RIVERA, FORD and TAYLOR, JJ., concur.