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Alexander v. American Medical Response

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION SECOND JUDICIAL DEPARTMENT


December 22, 2009

PATRICIA ALEXANDER, ETC., APPELLANT,
v.
AMERICAN MEDICAL RESPONSE, ET AL., RESPONDENTS, ET AL., DEFENDANTS.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Costello, J.), entered July 29, 2008, as granted that branch of the motion of the defendants American Medical Response and that branch of the cross motion of the defendants Mid-Island Center for the Aging, Inc., and the Gurwin Jewish Geriatric Center which were, in effect, for summary judgment dismissing the complaint insofar as asserted against them.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

STEVEN W. FISHER, J.P., JOSEPH COVELLO, FRED T. SANTUCCI and RUTH C. BALKIN, JJ.

(Index No. 4193/05)

DECISION & ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendant American Medical Response (hereinafter AMR) and the defendants Mid-Island Center for the Aging, Inc., and the Gurwin Jewish Geriatric Center (hereinafter together Gurwin) demonstrated their prima facie entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324) by submitting evidence establishing, inter alia, that they satisfied their respective duties "to exercise reasonable care and diligence in safeguarding" the decedent (D'Elia v Menorah Home & Hosp. for Aged & Infirm, 51 AD3d 848, 850). In opposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324). The affidavit of the plaintiff's expert was not probative of the issue of whether AMR and Gurwin satisfied their respective duties to safeguard the decedent (cf. O'Boy v Motor Coach Indus., Inc., 39 AD3d 512, 513-514; Samuel v Aroneau, 270 AD2d 474, 475). Furthermore, contrary to the plaintiff's contention, her submissions failed to establish, among other things, that AMR's or Gurwin's staff failed to abide by AMR's or Gurwin's internal rules and policies (cf. Kadyszewski v Ellis Hosp. Assn., 192 AD2d 765, 766). Accordingly, the Supreme Court properly granted that branch of AMR's motion and that branch of Gurwin's cross motion which were, in effect, for summary judgment dismissing the complaint insofar as asserted against them.

FISHER, J.P., COVELLO, SANTUCCI and BALKIN, JJ., concur.

20091222

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