Opinion
# 2021-058-011 Claim No. 127333 Motion No. M-96377
03-29-2021
DAVID KOIS and LYNETTE KOIS, as Administrators of the Estate of Brian Kois v. STATE OF NEW YORK
Brown Chiari LLP By: Michele A. Braun, Esq. Hon. Letitia James, New York State Attorney General By: Bonnie Gail Levy, Esq., Assistant Attorney General
Synopsis
Motion for summary judgment dismissing claims for wrongful death and conscious pain and suffering granted in part and denied in part. There are material issues of fact regarding the proximate cause of decedent's death and whether decedent endured conscious pain and suffering. However, Defendant is entitled to summary judgment dismissing so much of wrongful death cause of action as seeks pecuniary damages beyond funeral expenses.
Case information
| UID: | 2021-058-011 |
| Claimant(s): | DAVID KOIS and LYNETTE KOIS, as Administrators of the Estate of Brian Kois |
| Claimant short name: | KOIS |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 127333 |
| Motion number(s): | M-96377 |
| Cross-motion number(s): | |
| Judge: | CATHERINE E. LEAHY-SCOTT |
| Claimant's attorney: | Brown Chiari LLP By: Michele A. Braun, Esq. |
| Defendant's attorney: | Hon. Letitia James, New York State Attorney General By: Bonnie Gail Levy, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 29, 2021 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants David Kois and Lynette Kois filed this Claim on January 7, 2016 seeking damages for the conscious pain and suffering and wrongful death of their son, Brian Kois (decedent). At the time of his death on April 2, 2015, decedent was a resident of Walworth IRA, a group home run by the New York State Office of People with Developmental Disabilities (OPWDD) (see Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General [Levy Aff] Ex 18 [Individual Protective Oversight Plan (IPOP)] at 1). The Claim alleges Defendant was negligent in failing to perform consistent 15-minute bed checks throughout the duration of the overnight shift on April 1-2, 2015 and failed to perform proper signs of life checks as was required by decedent's Individual Protective Oversight Plan (IPOP) and Social Services Law § 493 (4) (c) (see Levy Aff Ex 1 [Claim] ¶ 5). Issue was joined on August 15, 2018 following the denial of Defendant's pre-answer motion to dismiss. A Note of Issue and Certificate of Readiness was filed on October 30, 2020. Defendant now moves for summary judgment. Claimant opposes the motion.
Shortly before they filed and served the instant Claim, Claim No. 127333, Claimants moved for leave to serve and file a late claim pursuant to Court of Claims Act § 10 (6) (see Motion No. M-87806). The proposed claim attached to the motion was identical to the instant Claim. By Decision and Order dated June 19, 2018 and entered July 10, 2018, the Court, among other things, granted Claimants motion to serve and file a late claim, but held that the service and filing of the proposed claim attached to the motion was unnecessary in light Claimants' service and filing of Claim No. 127333 (see Kois v State of New York, Claim No. Motion Nos M-87806, M-88050 [Ct Cl, Midey, Jr., J., June 19, 2018]). --------
FACTS
On or about December 3, 2014, decedent began residing at Walworth IRA, a group home operated by the New York State Office of People with Developmental Disabilities (OPWDD) (see IPOP at 1). At the time he began residing at Walworth IRA, decedent was a 41-year-old adult with developmental disabilities, having suffered a traumatic brain injury in or about July 1993 (see e.g. Levy Aff Ex 9 [David Kois EBT] at 16-21; id. Ex 10 [Lynette Kois EBT] at 22-27; Affirmation of Michele A. Braun, Esq. [Braun Aff] Ex B [Walworth IRA Records] at 1). Following his brain injury, decedent suffered complications related to hydrocephalus and received a ventriculoperitoneal (VP) shunt placement in his head in or about August 2006 to drain excess fluid from his brain into his abdomen (see Walworth IRA Records at 1; IPOP at 4). Additionally, in or about January 2009, decedent suffered a grand mal seizure (see Walworth IRA Records, at 1). Decedent was subsequently diagnosed with dementia as a result of the brain injury, antisocial traits, personality disorder, and cognitive disorder (see IPOP at 4).
After his brain injury in 1993, decedent lived with Claimant David Kois (see David Kois EBT at 19-20). However, after decedent developed further health and behavioral issues, he became a resident of Erie County Home for Traumatic Brain Injury, an OPWDD facility then known as Sunmount, in or about August 2012 (see id. 14-21; Walworth IRA Records at 2). On or about December 3, 2014, decedent was transferred to Walworth IRA (see David Kois EBT at 21; IPOP at 1).
Upon decedent's admission to Walworth IRA, an IPOP and nursing care plans were developed for decedent and specifically tailored for his care and supervision (see IPOP; Levy Aff Exs 20, 21 [Nursing Plan of Care] id. Ex 15 [Dewispelaere EBT] at 18, 26-32). As relevant here, decedent's IPOP specified that during "Hours of Sleep" there were to be bed checks or "[p]eriodic observation supervision to occur no less than one time 15 minutes, to include observation of face and/or torso to determine breathing and well being" (IPOP at 1; see also Levy Aff Ex 31 [Finger Lakes DDSO Policy and Procedure Manual Levels of Supervision] at 3).
During his time at Walworth IRA, decedent had several visits to the emergency room and other doctor appointments relating to abdominal pain (see Levy Aff Exs 22-24, 38). On March 13, 2015, decedent, accompanied by Walworth IRA Nurse Diane Dewispelaere, attended an appointment with a neurosurgery nurse practitioner who ordered "a baseline CT scan of head and shunt series" to evaluate whether the VP shunt was properly functioning (Levy Aff Ex 22 [Decedent's Consultation Records] at 15; see id. at 16; Dewispelaere EBT at 57-63). In rendering such decision, the neurosurgery nurse practitioner recognized that decedent's VP shunt had not been replaced since it was initially placed in 2006 and advised that VP shunts only last for seven years (see Levy Aff Ex 22 at 16).
On March 31, 2015, two days before his death, decedent underwent a CT scan of his head and an X ray of the VP shunt at Newark-Wayne Community Hospital (see Levy Aff Ex 38). The CT scan revealed the VP shunt was "in place with no definite hydrocephalus" (id. at 1) and the X ray results indicated "[t]he shunt catheter appears in tact" (id. at 2). However, the CT scan did note "the fourth ventricle is prominent" and a "[s]mall area of encephalomalacia right parietal occipital region adjacent to [VP] shunt" (id. at 1). Additionally, the X ray results showed "a metallic linear wire type density overlying the pelvis posteriorly in the region of the rectum" (id. at 2).
During the overnight shift on April 1-2, 2015, decedent was being monitored by Kristopher McDaniel (McDaniel), a Direct Support Assistant at Walworth IRA (see Levy Aff Ex 11 [McDaniel EBT] at 12, 44-45). McDaniel regularly worked the overnight shift beginning at 11:00 p.m. and ending at 7:00 a.m. where his duties included supervising residents, cleanup, meal preparation, laundry and conducting bed checks (id. at 12-13). McDaniel was responsible for decedent and three other residents on the overnight shift on April 1-2, 2015 (see id. 44-45). At his examination before trial, McDaniel acknowledged he knew he had to perform bed checks of decedent, including checks for signs of life, every 15 minutes in accordance with decedent's IPOP (see id. 28-30). McDaniel was required to record the bed checks he conducted of decedent on a log (see id. 21; Levy Aff Ex 27 [Bed Check Log]). McDaniel explained that, to perform a bed check he "walked into the individual's room [and] . . . looked for signs of life," including "if they are breathing, moving, anything to show . . . that they were alive" (McDaniel EBT at 23). McDaniel believed he was not permitted to remove covers off of a resident, but could use a flashlight to view a resident's face or torso for breathing (see id. at 23, 53-54).
The facts regarding the frequency of bed checks and signs of life checks performed on decedent during the overnight shift on April 1-2, 2015 are disputed. McDaniel testified at his examination before trial testimony that he performed consistent bed checks of decedent until 5:45 a.m. (see McDaniel EBT at 56; see Bed Check Log). Claimants refute McDaniel's testimony by presenting an EMT Ambulance report indicating that decedent was last seen by Walworth IRA staff at 11:00 p.m. on April 1, 2015 (see Braun Aff Ex D). Claimants also produce a New York State Police Incident Report which states decedent "was last seen alive at approximately 4:30 am by employee Kristopher C. McDaniel and found unresponsive by same at 6:15 am" (id. Ex E at 1). However, it appears beyond dispute that, McDaniel, at the very least, missed a bed check of decedent at 6:00 a.m. on April 2, 2015 (see McDaniel EBT at 61-62; Bed Check Log; see also Braun Aff ¶ 34 [not disputing the fact that McDaniel missed the 6:00 a.m. bed check]).
When McDaniel conducted a bed check at 6:15 a.m. on April 2, 2015 he found decedent unresponsive (see McDaniel EBT at 61, 63-64) McDaniel immediately sought the assistance of Misty Harper (Harper), the other Direct Support Assistant working the overnight shift (see id. at 63- 64). Ms. Harper performed CPR while McDaniel called 911 and his supervisor, Jamie George (see id. at 64-66). Harper testified at her examination before trial that decedent had no pulse, looked blue, and had cold wrists and hands, but his neck was warm (see Levy Aff Ex 12 [Harper EBT] at 41). Ms. Harper explained that EMT arrived within 10 to 15 minutes, examined decedent, determined that he was dead, and instructed her to stop performing CPR (see id. at 43; McDaniel EBT at 66).
The coroner issued a death certificate stating decedent died of natural causes with the immediate cause being "respiratory arrest" due to or as a consequence of hydrocephalus and traumatic brain injury (Levy Aff Ex 32 [Certificate of Death]). No autopsy was performed on decedent's body (see id.; David Kois EBT at 33; Lynette Kois EBT at 43-44). This Claim for wrongful death and conscious pain and suffering ensued.
Defendant now moves for summary judgment dismissing the Claim. As to the cause of action for wrongful death, Defendant contends that the actions or inactions of Walworth IRA staff were not the proximate cause of decedent's death (see Levy Aff ¶¶ 73-78). Alternatively, Defendant argues that it is entitled to summary judgment on the wrongful death cause of action on the ground that Claimants suffered no pecuniary loss (see id. ¶¶ 86-92). Defendant also contends decedent did not endure conscious pain and suffering and, thus, it is entitled to summary judgment dismissing said claim (see id. ¶¶ 79-85). Claimants oppose the motion, contending several material issues of fact preclude summary judgment for Defendant (see Braun Aff ¶¶ 40-59).
It is well settled that summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (St. Paul Indus. Park v New York State Urban Dev. Corp., 63 AD2d 822, 822 [4th Dept 1978] [internal quotation marks and citations omitted]). "[T]he 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 NY2d 320, 324 [1986]). Once the proponent of a motion for summary judgment has established its prima facie entitlement to judgment as a matter of law, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (id.; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
"On a motion for summary judgment the burden on the court is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist" (Newton v Gross, 213 AD2d 1074, 1075 [4th Dept 1995] [internal quotation marks, alteration, and citation omitted]). "It is well established that conflicting expert opinions may not be resolved on a motion for summary judgment" (Hines-Bell v Criden, 145 AD3d 1537, 1538 [4th Dept 2016] [internal quotation marks and citations omitted]; Williams v Lucianatelli, 259 AD2d 1003, 1003 [4th Dept 1999]). Thus, summary judgment is inappropriate where the parties adduce conflicting expert opinions (see Hines-Bell, 145 AD3d at 1538; Cook v Peterson, 137 AD3d 1594, 1596 [4th Dept 2016]; see also Shewbaran v Laufer, 177 AD3d 510, 511 [1st Dept 2019]). "However, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (Lowe v Japal, 170 AD3d 701, 702 [2d Dept 2019]; see Diaz v Downtown New York Hosp., 99 NY2d 542, 544 [2002]).
A claim for wrongful death must be premised on allegations that the defendant committed an underlying wrong against the decedent (see Meroni v Holy Spirit Assn. for Unification of World Christianity, 119 AD2d 200, 207 [2d Dept 1986], appeal dismissed 69 NY2d 742 [1987]; see also Aetna Cas. & Sur. Co. v Gigante, 229 AD2d 975, 976 [4th Dept 1996] [wrongful death cause of action premised upon negligence]). The Claim alleges Defendant was negligent in "failing to properly supervise [decedent]; failing to properly perform consistent 15 minute bed checks throughout the duration of the [overnight] shift, and failing to perform proper Signs of Life checks" (Claim ¶ 5).
"In order to prevail on a negligence claim, a [claimant] must demonstrate (1) a duty owed by the defendant to the [claimant], (2) a breach thereof, and (3) injury proximately resulting therefrom" (Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016] [internal quotation marks and citation omitted], rearg denied 28 NY3d 956 [2016]). On a motion for summary judgment, defendant is "required in the first instance to establish that there was no negligence on its part, i.e., that there was no breach of the duty of [care] and further, in the event that there was such a breach, that the breach was not a proximate cause of the injuries" (Walley v Bivins, 81 AD3d 1286, 1287 [4th Dept 2011]).
Defendant does not dispute that it owed a duty to decedent or that said duty was breached; rather, Defendant contends the actions and/or inactions of the employees of Walworth IRA were not the proximate cause of decedent's death (see Levy Aff ¶¶ 73-78). "The test for proximate cause is whether under all the circumstances the chain of events that followed the negligent act or omission was a normal or foreseeable consequence of the situation created by the [defendant's] negligence" (Walley, 81 AD3d at 1287 [internal quotation marks and citations omitted]). "'As a general rule, the question of proximate cause is to be decided by the finder of fact,' but it may be decided as a matter of law 'where only one conclusion may be drawn from the established facts'" (O'Keefe v Wohl, 184 AD3d 1046, 1047 [3d Dept 2020], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312, 315 [1980]; see Hahn v Tops Mkts., LLC, 94 AD3d 1546, 1548 [4th Dept 2012] [motion for summary judgment should be denied where "more than one conclusion may be drawn from the established facts"]).
The Court concludes there are outstanding issues of fact as to the proximate cause of decedent's death. Defendant's expert, Dr. Scott F. LaPoint, and Claimant's expert, Dr. David J. Serra, provided conflicting expert opinions as to the proximate cause of decedent's death. In support of Defendant's motion, Dr. LaPoint contends the coroner improperly determined that decedent died of complications of hydrocephalus and opines that the appropriate cause of death is Sudden Unexpected Death in Epilepsy (SUDEP) (see Affirmation of Scott F. LaPoint, M.D. [Dr. LaPoint Aff] ¶¶ 27-28). In opposition, Dr. Serra opines the coroner correctly determined the cause of death to be "respiratory arrest as a result of complications due to infection, defect or malfunction involving [decedent's] VP shunt that drained into his abdomen" (Affirmation of David J. Serra, M.D. [Dr. Serra Aff] ¶ 31). Both experts' opinions are based upon, among other things, decedent's extensive medical history including the CT Scan of decedent's brain on March 31, 2015, two days before his death (see e.g. Dr. LaPoint Aff ¶¶ 27, 30; Dr. Serra Aff ¶¶ 29-30).
Additionally, the experts present divergent opinions regarding whether decedent would have survived had consistent 15-minute bed checks and signs of life checks been performed in accordance with decedent's IPOP (compare Reply Affirmation of Dr. LaPoint [Dr. LaPoint Reply Aff] ¶ 11 ["(d)ue to the rapidity of death from hydrocephalus, it is possible for death to have occurred within minutes, and thus in between the 15 minute bed checks" and before emergency personnel arrived], with Dr. Serra Aff ¶ 41 ["if proper 15 minute signs of life checks had been performed on (decedent) during the over-night April 1-2, 2015 it is more likely than not that (decedent) would have obtained the necessary emergency treatment and would have had a substantial chance of surviving"]). These competing expert affidavits regarding the proximate cause of decedent's death present a material question of fact that must be resolved at trial.
Alternatively, Defendant contends it is entitled to summary judgment on the wrongful death cause of action for Claimants' failure to seek appropriate pecuniary damages (see Levy Aff ¶¶ 86-92). Damages in a wrongful death action are limited to "fair and just compensation for the pecuniary injuries resulting from the decedent's death to the persons for whose benefit the action is brought" (EPTL 5-4.3 [emphasis added]; see James v Middletown Community Health Ctr., 278 AD2d 280, 281 [2d Dept 2000] ["the elements of a wrongful death claim include the survival of distributees who suffered pecuniary loss by reason of the decedent's death, and the appointment of a personal representative of the decedent"]) "Pecuniary loss . . . includes loss of income and financial support, loss of household services, loss of parental guidance, as well as funeral expenses and medical expenses incidental to death" (Milczarski v Walaszek, 108 AD3d 1190, 1190 [4th Dept 2013] [internal quotation marks omitted]; see Gonzales v New York City Hous. Auth., 77 NY2d 663, 668 [1991]). Pecuniary injuries, however, does not include "recovery for grief, loss of society, [and] affect" (Gonzalez, 77 NY2d at 667-668; see Thurston v State of New York, UID No. 2013-031-019 [Ct Cl, Minarik, J., May 2, 2013]).
It is undisputed that Claimants are seeking funeral expenses for decedent's funeral and have submitted an invoice showing such amount totaled $7,385.00 (see Braun Aff Ex H). Proof of these funeral expenses was provided by Claimants by letter dated September 30, 2019 (see id.). Accordingly, to the extent Defendant seeks dismissal of so much of the wrongful death cause of action as seeks reimbursement of funeral expenses, the motion is denied.
However, Defendant has established its prima facie entitlement to summary judgment dismissing so much of the wrongful death cause of action seeking pecuniary loss beyond reimbursement of funeral expenses (see Milczarski, 108 AD3d at 1191). As an initial matter, Claimants testified at their examinations before trial that decedent did not work nor did decedent provide Claimants with any household help, business help, or monetary contributions since living at Walworth IRA (see David Kois EBT at 40; Lynette Kois EBT at 59-60, 62). Additionally, Claimants acknowledged there are not seeking any lost wages or future lost earnings (see David Kois EBT at 38-39; Lynette Kois EBT at 59; Levy Aff Ex 6 [Verified Amended Bill of Particulars] ¶¶ 11, 13) or reimbursement for decedent's medical expenses (see Verified Amended Bill of Particulars ¶ 14; Levy Aff Ex 35 [Response to Notice for Discovery and Inspection of Collateral Sources indicating"(n)o claim has been made by the claimants in this action relative to medical expenses"]). The Claim, as amplified by the bill of particulars, alleges as wrongful death damages that Claimants "have been deprived of the comfort, services, companionship and society of their son" (see Verified Amended Bill of Particulars ¶ 15 see Claim ¶ 3). These purported damages do not qualify as recoverable pecuniary injuries (Gonzalez, 77 NY2d at 667-668; see Thurston, UID No. 2013-031-019).
Claimants' contention that there is a question of fact as to whether decedent would have been able to provide services to Claimants in the future (see Braun Aff ¶ 59) is unsupported by competent evidence in the record. Indeed, it is speculative for Claimants to contend they "had a reasonable expectation of future assistance from decedent" where it is undisputed that decedent had not provided any assistance to them from the time he began living in Walworth IRA on December 3, 2014 to his death on April 2, 2015 (Moyer v State of New York, 175 AD2d 607, 607 [4th Dept 1991]; cf. Zelizo v Ullah, 2 AD3d 273, 273 [1st Dept 2003] [denying motion to dismiss wrongful death cause of action where there was "some evidence that the decedent was predisposed to help his parents should they be in need, and that they had a reasonable expectation of future support"]). Consequently, the Court concludes that Claimants failed to raise a triable issue of fact to defeat Defendant's entitlement to summary judgment dismissing so much of the wrongful death cause of action seeking pecuniary loss beyond reimbursement of funeral expenses.
With respect to the claim for conscious pain and suffering, it is well settled Claimants "have the threshold burden of proving consciousness for at least some period of time following an accident in order to justify an award of damages for pain and suffering" (Cummins v County of Onondaga, 84 NY2d 322, 324 [1994]; see Johnson v Jacobowitz, 65 AD3d 610, 614 [2d Dept 2009], lv denied 14 NY3d 710 [2010]). "Although a [claimant] bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering" (Houston v McNeilus Truck & Mfg., Inc., 115 AD3d 1185, 1186 [4th Dept 2014] [internal quotation marks and citations omitted]; see Haque v Daddazio, 84 AD3d 940, 941 [2d Dept 2011]). "'[M]ere conjecture, surmise or speculation is not enough to sustain a claim for [pain and suffering] damages'" (Cummins, 84 NY2d at 325, quoting Fiederlein v New York City Health & Hosps. Corp., 56 NY2d 573, 574 [1982]). "Where . . . the interval between injury and death is relatively brief, an award for conscious pain and suffering depends on several factors, including the degree of consciousness, severity of pain, and apprehension of impending death along with the duration of the suffering" (Jones v Simeone, 112 AD2d 772, 772 [4th Dept 1985]; see Ramos v Shah, 293 AD2d 459, 460 [2d Dept 2002]).
As set forth above, conscious pain and suffering is measured from the time of the injury-producing negligent act to the time of death (see generally Keenan v Molloy, 137 AD3d 868, 871 [2d Dept 2016] [evaluating decedent's consciousness immediately following impact with bus that killed him]). Here, the Claim alleges Defendant was negligent in failing to perform consistent 15-minute bed checks and signs of life checks for the duration of the overnight shift on April 1 to April 2, 2015 (see Claim ¶ 5). Claimants aver that as a result of this negligent act, decedent suffered conscious pain and suffering and ultimately died on April 2, 2015 (see id. ¶ 6). The Claim contains no allegations of any negligence committed by Defendant prior to April 1, 2015. Consequently, the Court concludes that to the extent Claimants seek conscious pain and suffering, recovery, if any, is limited to conscious pain and suffering endured by decedent during the overnight shift beginning on April 1, 2015 to the time of decedent's death. However, Defendant has failed to establish its prima facie entitlement to summary judgment dismissing Claimants' cause of action for conscious pain and suffering.
In his initial affirmation, Dr. LaPoint solely addresses the conscious pain and suffering decedent would have endured if he died of SUDEP (see Dr. LaPoint Aff ¶¶ 44-46). Dr. LaPoint did not address conscious pain and suffering for death due to complications of hydrocephalus as determined by the coroner on the death certificate until his reply affirmation (see Dr. LaPoint Reply Aff ¶ 12 ["death due to hydrocephalus is characterized by a coma followed by respiratory arrest" and "(t)here would thus be no conscious pain and suffering in that setting"]). It is well settled "[t]he function of a reply affidavit is to address arguments made in opposition to the position taken by the movant and not to permit the movant to introduce new arguments in support of the motion" (Seefeldt v Johnson, 13 AD3d 1203, 1203-1204 [4th Dept 2004] [internal quotation marks and citations omitted]). The purpose of this rule is "to prevent a movant from remedying basic deficiencies in its prima facie showing by submitting evidence in reply, thereby shifting to the non-moving party the burden of demonstrating the existence of a triable issue of fact at a time when that party has neither the obligation nor opportunity to respond" (Matter of Kennelly v Mobius Realty Holdings LLC, 33 AD3d 380, 381 [1st Dept 2006]).
It should be no surprise to Defendant that Claimants would proceed under notion that decedent died of complications of hydrocephalus consistent with the death certificate (see Valenti v Camins, 95 AD3d 519, 522 [1st Dept 2012] ["Since it was obvious, at the time (the) defendants moved for summary judgment, that plaintiff believed (a defendant doctor) to have committed malpractice by placing a screw in the wrong place, the issue became part of (the) defendants' prima facie burden]; cf. Feliciano v New York City Health & Hosps. Corp., 62 AD3d 537, 538 [1st Dept 2009] [reply affirmation was appropriate because it was made in response to an opposing expert affirmation that raised a new theory of liability]). Consequently, Defendant had the prima facie burden of establishing that decedent did not suffer conscious pain and suffering had he died of hydrocephalus as determined by the coroner. Because Dr. LaPoint's initial affidavit did not address conscious pain and suffering for death caused by complications of hydrocephalus, it was insufficient to establish entitlement to judgment as a matter of law, and the burden never shifted to Claimants to raise an issue of fact (see Seefeldt, 13 AD3d at 1204; Valenti, 95 AD3d at 523; Ritt v Lenox Hill Hosp., 182 AD2d 560, 561-562 [1st Dept 1992]). Consequently, the motion for summary judgment seeking dismissal of the cause of action for conscious pain and suffering is denied.
Accordingly, it is hereby:
ORDERED Motion No. M-96377 is GRANTED insofar as dismissing so much of Claimants' cause of action for wrongful death as seeks pecuniary loss beyond reimbursement of funeral expenses; and it is further
ORDERED Defendant's Motion M-96377 is otherwise DENIED.
March 29, 2021
Albany, New York
CATHERINE E. LEAHY-SCOTT
Judge of the Court of Claims The Court considered the following in deciding this motion: (1) Notice of Motion for Summary Judgment, dated January 8, 2021. (2) Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, in Support of Defendant's Motion for Summary Judgment, dated January 8, 2021, with attachments. (3) Defendant's Memorandum of Law in Support of Motion for Summary Judgment, dated January 8, 2021. (4) Affirmation of Scott F. LaPoint, M.D., dated January 7, 2021, with attachment. (5) Affirmation of Michele A. Braun, Esq., in Opposition to Defendant's Motion for Summary Judgment, dated March 9, 2021, with attachments. (6) Claimant's Memorandum of Law, dated March 9, 2021. (7) Affirmation of David J. Serra, M.D., dated February 12, 2021. (8) Reply Affirmation of Bonnie Gail Levy, Esq., Assistant Attorney General, dated March 12, 2021. (9) Reply Affirmation of Scott F. LaPoint, M.D., dated March 11, 2021.