Opinion
1026 CA 20-01556
01-28-2022
Ted W. RITTS, Individually and as Administrator of the Estate of David L. Colley, Deceased, Plaintiff-Appellant, v. GOWANDA REHABILITATION AND NURSING CENTER, also Known as GNH LLC, Defendant-Respondent.
HOGANWILLIG, PLLC, AMHERST (RYAN C. JOHNSEN OF COUNSEL), FOR PLAINTIFF-APPELLANT. FELDMAN KIEFFER, LLP, BUFFALO (JONATHAN J. SCHUTRUM OF COUNSEL), FOR DEFENDANT-RESPONDENT.
HOGANWILLIG, PLLC, AMHERST (RYAN C. JOHNSEN OF COUNSEL), FOR PLAINTIFF-APPELLANT.
FELDMAN KIEFFER, LLP, BUFFALO (JONATHAN J. SCHUTRUM OF COUNSEL), FOR DEFENDANT-RESPONDENT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is denied and the complaint is reinstated.
Memorandum: Plaintiff commenced this action to recover damages arising from injuries sustained by plaintiff's decedent while he was a patient at a nursing home facility owned and operated by defendant. The complaint asserted causes of action for medical malpractice and violations of Public Health Law § 2801-d. Plaintiff appeals from an order granting defendant's motion for summary judgment dismissing the complaint.
We agree with plaintiff that Supreme Court erred in granting the motion because defendant did not meet its initial burden thereon. It is well settled that "a defendant's burden is not met if the defendant's expert renders an opinion that is ... unsupported by competent evidence" ( Tirado v. Koritz , 156 A.D.3d 1342, 1344, 68 N.Y.S.3d 295 [4th Dept. 2017] [internal quotation marks omitted]). "[I]t is equally well settled that ‘opinion evidence must be based on facts in the record or personally known to the witness’ " ( id. , quoting Hambsch v. New York City Tr. Auth. , 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516 [1984] ). Inasmuch as "summary judgment is the procedural equivalent of a trial ... [, t]he moving party must sufficiently demonstrate entitlement to judgment, as a matter of law, by tender of evidentiary proof in admissible form" ( Christopher P. v. Kathleen M.B. , 174 A.D.3d 1460, 1461, 105 N.Y.S.3d 750 [4th Dept. 2019] [internal quotation marks omitted]).
Here, defendant's experts proffered opinions about decedent's care at the nursing home facility that were not based on facts in the record because defendant failed to submit any of decedent's medical records, certified or otherwise, to support those opinions. Additionally, those opinions were not based on facts personally known to the experts. Thus, the experts’ affidavits are " ‘speculative or unsupported by any evidentiary foundation’ " ( Schuster v. Dukarm , 38 A.D.3d 1358, 1359, 831 N.Y.S.2d 619 [4th Dept. 2007], quoting Diaz v. New York Downtown Hosp. , 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68 [2002] ), and have "no probative value" ( Daniels v. Meyers , 50 A.D.3d 1613, 1614, 857 N.Y.S.2d 403 [4th Dept. 2008] ; see Lillie v. Wilmorite, Inc. , 92 A.D.3d 1221, 1222, 938 N.Y.S.2d 396 [4th Dept. 2012] ; Piersielak v. Amyell Dev. Corp. , 57 A.D.3d 1422, 1423, 870 N.Y.S.2d 202 [4th Dept. 2008] ). Because defendant failed to meet its initial burden on the motion, the burden never shifted to plaintiff, and denial of the motion "was required ‘regardless of the sufficiency of the opposing papers’ " ( Scruton v. Acro-Fab Ltd. , 144 A.D.3d 1502, 1503, 40 N.Y.S.3d 864 [4th Dept. 2016], quoting Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] ; see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985] ).