Revellino & Byczek, LLP, Lake Success, NY (Anthony
Mahoney of counsel), for appellant.
Bartlett, McDonough & Monaghan, LLP, Mineola, NY (Robert
G. Vizza of counsel), for respondent South Nassau Communities
Ahmuty, Citrin & Spratt, LLP, Lake Success, NY
(Christopher Simone and Juan C. Gonzalez of counsel), for
respondent Monte Nussbaum.
PRISCILLA HALL, J.P., ROBERT J. MILLER, FRANCESCA E.
CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
action, inter alia, to recover damages for medical
malpractice and wrongful death, etc., the plaintiff appeals,
as limited by his brief, from so much of an order of the
Supreme Court, Nassau County, (Cozzens Jr., J.), dated
September 16, 2014, as granted the separate motions of the
defendants South Nassau Communities Hospital and Monte
Nussbaum which were for summary judgment dismissing the
complaint insofar as asserted against each of them.
that the order is affirmed insofar as appealed from, with one
bill of costs.
August 2002, the plaintiff's decedent, a 42-year-old man
who suffered from multiple health issues, including renal
failure and morbid obesity, underwent total left knee
replacement surgery. The surgery was completed without issue.
The decedent was monitored by nursing staff overnight and
was, at all pertinent times, in stable condition. However, at
6:20 a.m. the next day, a nurse found him unresponsive, and
he was declared dead shortly thereafter. The Medical Examiner
determined the cause of death to be "hypertrophic
cardiomyopathy" due to "hypertensive and
arteriosclerotic cardiovascular disease."
decedent's wife, individually and as administratrix of
the decedent's estate, commenced this action to recover
damages for medical malpractice, wrongful death, and loss of
services against, among others, the defendant South Nassau
Communities Hospital (hereinafter the hospital), where the
surgery took place, and the defendant Monte Nussbaum, the
decedent's primary care physician who had cleared the
decedent for surgery. The decedent's wife died in 2006
and this action was stayed for several years. In 2011, upon
receiving letters of temporary administration, the Public
Administrator was substituted as the plaintiff. In 2014, all
of the defendants separately moved for summary judgment
dismissing the complaint insofar as asserted against each of
them. The Supreme Court granted each of their motions. The
plaintiff appeals, as limited by his brief, from so much of
the order as granted the separate motions of the hospital and
order to establish liability for medical malpractice, a
plaintiff must prove that the defendant deviated or departed
from accepted community standards of practice and that such
departure was a proximate cause of the plaintiff's
injuries" (Leavy v Merriam, 133 A.D.3d 636,
637; see Reilly v Cohen, 121 A.D.3d 961, 962;
Stukas v Streiter, 83 A.D.3d 18, 23). "On a
motion for summary judgment, a defendant has the burden of
establishing the absence of any departure from good and
accepted medical practice or that the plaintiff was not
injured thereby" (Leavy v Merriam, 133 A.D.3d
at 637; see Salvia v St. Catherine of Sienna Med.
Ctr., 84 A.D.3d 1053, 1053-1054). "In response, the
plaintiff need only raise a triable issue of fact regarding
the element or elements on which the defendant has made its
prima facie showing'" (McCarthy v Northern
Westchester Hosp., 139 A.D.3d 825, 826, quoting
Matos v Khan, 119 A.D.3d 909, 910). "General
allegations that are conclusory and unsupported by competent
evidence tending to establish the essential elements of
medical malpractice are insufficient to defeat a
defendant's motion for summary judgment"
(Bezerman v Bailine, 95 A.D.3d 1153, 1154).
the hospital and Nussbaum each established their prima facie
entitlement to judgment as a matter of law by submitting
expert affirmations which demonstrated that neither departed
from the accepted standard of care in their respective
treatment of the plaintiff (see Leto v Feld, 131
A.D.3d 590, 591; Matos v Khan,119 A.D.3d 909, 910;
Poter v Adams,104 A.D.3d 925, 926; Shields v
Kleiner,93 A.D.3d 710, 712). Specifically, Nussbaum
submitted the affirmation of an expert who opined that, based
on the results of pre-surgical tests that the decedent
underwent shortly before the surgery, Nussbaum appropriately
provided medical clearance for the decedent to undergo the
left knee replacement procedure. The hospital submitted an
affirmation of an expert which established that the
hospital's employees did not depart from the applicable
standards of care in treating the decedent, prescribing
postoperative pain medication, and monitoring his condition
after surgery. In opposition, the plaintiff failed to raise a
triable issue of fact as to a departure from the applicable
standard of care by either the hospital or Nussbaum. The
affirmation of the plaintiff's expert failed to address
specific assertions made by the hospital's and
Nussbaum's experts, and was otherwise conclusory,
speculative, and unsupported by the evidence (see ...