Opinion
Index No. 522689/2019
03-01-2024
Jean Wilson, Plaintiff(s), v. Kingsbrook Jewish Medical Center, Defendant(s).
Unpublished Opinion
Aaron D. Maslow, J.
The following numbered papers were read on this motion:
NYSCEF Document Numbers 60-63, 65-66.
Upon the foregoing papers, and having heard oral argument and due deliberation having been had,
Counsel are reminded of the provisions requiring that an opinion or decision be included in the record on appeal should one be taken (see CPLR 5526; 22 NYCRR 1250.7 [b] [4],[d] [1] [iii]). Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc.2d 335 [Sup Ct, Albany County 1997]).
It is hereby ORDERED as follows:
Plaintiff's motion to reargue is DENIED. Plaintiff seeks to reargue this Court's order dated November 3, 2023. In said order, this Court granted Defendant's motion for summary judgment. Among other things, this Court held that Plaintiff failed to adequately rebut Defendant's prima facie case with respect to the openness, obviousness and lack of inherent danger of the stretcher which allegedly caused Plaintiff's injuries. Furthermore, Plaintiff failed to rebut Defendant's argument that the Plaintiff's asserted injuries were not caused by the subject accident, but that said injuries predated Plaintiff's fall.
"A motion for leave to reargue must be 'based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion' (CPLR 2221[d][2])" (Central Mtge. Co. v McClelland, 119 A.D.3d 885 [2d Dept 2014). Such a motion is addressed to the sound discretion of the motion court (see A.R. Conelly, Inc. v New York City Charter High Sch. for Architecture, Eng'g & the Constr. Indus., 206 A.D.3d 787 [2d Dept 2022]).
This Court finds that it did not overlook or misapprehend any matters of fact or law.
This Court adheres to its previous determination which granted summary judgment to the Defendant. "As we have stated frequently, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974])). The party moving for summary judgment must present a prima facie of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 N.Y.3d 733 [2008]; Alvarez, 68 N.Y.2d at 324). Once prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 231 [1978]). Furthermore, "[t]he function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist" (Kolivas v Kirchoff, 14 A.D.3d 493, 493 [2d Dept 2005]). Motions for summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]).
As per this Court's previous determination, Defendant established prima facie entitlement to judgment as a matter of law by demonstrating that the presence of the wheelchair was open, obvious, known to the plaintiff, and not inherently dangerous. To support Defendant's arguments on this topic, Defendant filed an affidavit from Mr. John C. McGinty, Jr., as an expert in Hospital and Health Care Administration (see NYSCEF Doc No. 33). Mr. McGinty's affidavit notes that: (1) the placement of the stretcher which allegedly caused Plaintiff's fall was not negligent; (2) the hallway in which Plaintiff's trip and fall occurred was well lit and the floor was free from hazards; (3) it is within the standard of care to leave a stretcher against a wall in the resting position; (4) the stretcher was placed at an adequate distance from the doorway which Plaintiff had utilized; and (5) the door which the Plaintiff had utilized was wide enough to allow for easy egress (id.).
As to the causation of Plaintiff's injury, Defendant also provided the affirmation of Dr. Jeffrey V. Dermksian, an orthopedic surgeon (see NYSCEF Doc No. 34). Dr. Dermksian reviewed Plaintiff's medical records and found that Plaintiff had a pre-existing right knee condition as Plaintiff admitted that Plaintiff had previously injured Plaintiff's right knee (id.). Dr. Dermksian opined that Plaintiff's trip and fall did not cause or exacerbate Plaintiff's right knee injury (id.). To reach this conclusion, Dr. Dermksian compared Plaintiff's MRIs from before and after the subject accident and found "no appreciable difference" (id.). Accordingly, Defendants established prima facie entitlement to summary judgment by establishing the absence of causation.
For these reasons, the burden shifted to Plaintiff to provide evidence to create a material issue of fact or credibility barring summary judgment.
In opposition, Plaintiff filed nothing except an attorney affirmation and a statement of material facts (see NYSCEF Doc Nos. 52 and 53). "[E]xpert opinion evidence from a party defendant which bears a strong factual relationship to the alleged injury requires an expert response from the plaintiff that the practice deviates from accepted medical standards if the plaintiff is to avoid summary judgment" (Wind v Cacho, 111 A.D.2d 808 [2d Dept 1985]). "It is clear that unsubstantiated and conclusory allegations of fact by an attorney lacking personal knowledge are patently insufficient to defeat a motion for summary judgment" (Kartiganer Assoc., P.C. v Town of New Windsor, 132 A.D.2d 527 [2d Dept 1987]). Plaintiff failed to provide any evidence to substantiate Plaintiff's claims and provided no excuse for such absence. Plaintiff solely filed an attorney affirmation. In fact, even in Plaintiff's present motion (which could have been converted into a motion to renew) Plaintiff failed to provide anything other than Plaintiff's attorney affirmation. Thus, Plaintiff failed to rebut Defendant's prima facie case for summary judgment and summary judgment was appropriate.
Accordingly, this Court has not misapplied or misapprehended any fact or law in its previous order and Plaintiff's motion to reargue is DENIED in its entirety.