Barnaman v. Bishop Hucles Episcopal Nursing Home

213 A.D.3d 896

184 N.Y.S.3d 800

Jacob BARNAMAN, etc., appellant,

v.BISHOP HUCLES EPISCOPAL NURSING HOME, respondent, et al., defendants.

2019–03092

Index No. 45321/03

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 5, 2022

February 22, 2023

Sim & Record, LLP, Bayside, NY (Sang J. Sim of counsel), for appellant.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains, NY (Samantha E. Quinn of counsel), for respondent.

BETSY BARROS, J.P., VALERIE BRATHWAITE NELSON, WILLIAM G. FORD, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Ellen M. Spodek, J.), dated January 14, 2019. The order denied the plaintiff's motion for leave to renew and reargue that branch of his prior motion which was to impose sanctions against the defendant Bishop Hucles Episcopal Nursing Home for spoliation of evidence, which had been denied in a prior order of the same court dated December 13, 2016, and granted the motion of the defendant Bishop Hucles Episcopal Nursing Home for summary judgment dismissing the amended complaint insofar as asserted against it.

ORDERED that the appeal from so much of the order dated January 14, 2019, as denied that branch of the plaintiff's motion which was for leave to reargue that branch of his prior motion which was to impose sanctions against the defendant Bishop Hucles Episcopal Nursing Home for spoliation of evidence is dismissed, as no appeal lies from an order denying reargument; and it is further,

ORDERED that the order dated January 14, 2019, is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendant Bishop Hucles Episcopal Nursing Home.

In February 1996, at the age of 84, the plaintiff's decedent became a resident of the defendant Bishop Hucles Episcopal Nursing Home (hereinafter the defendant). At the time of admission, the decedent was wheelchair-bound and had been diagnosed with arthritis, hypertension, and glaucoma-induced blindness, among other conditions. She required assistance in all activities of daily living. By 2003, she also suffered from dementia, severe osteoporosis, and a sacral pressure ulcer, and was totally dependant on the defendant's staff members for all activities of daily living. On May 8, 2003, while the decedent was lying in bed, members of the defendant's staff observed swelling and tenderness in her right thigh. The decedent complained of pain, but was unable to describe what had occurred. An X-ray revealed a fracture in her right femur. That night, the decedent was transferred to a hospital, where she remained until she went into cardiopulmonary arrest and passed away on May 25, 2003, at the age of 92.

The plaintiff, the decedent's son and the administrator of her estate, thereafter commenced this action against the defendant, among others. He subsequently served a bill of particulars, alleging that the defendant was negligent in, inter alia, causing the decedent's pressure ulcer and right femur fracture.

In September 2016, the plaintiff moved, among other things, to impose sanctions against the defendant for spoliation of evidence, based on its failure to disclose certain records it had generated regarding the decedent, which were subsequently destroyed. The defendant opposed the motion, asserting, inter alia, that the records had been stored in an outside storage facility operated by a nonparty, which was destroyed in a fire in January 2015. In an order dated December 13, 2016, the Supreme Court, among other things, denied that branch of the plaintiff's motion.

In June 2017, the defendant moved for summary judgment dismissing the amended complaint insofar as asserted against it. The plaintiff opposed the motion, and moved, inter alia, for leave to renew that branch of his prior motion which was to impose sanctions against the defendant for spoliation of evidence. The defendant opposed the plaintiff's motion. By order dated January 14, 2019, the Supreme Court granted the defendant's motion for summary judgment and denied the plaintiff's motion, among other things, for leave to renew. The plaintiff appeals.

"The elements of a medical malpractice cause of action are a deviation or departure from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries" ( Schwartz v. Partridge, 179 A.D.3d 963, 964, 117 N.Y.S.3d 300 [internal quotation marks omitted]). "When moving for summary judgment, a defendant provider has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( J.P. v. Patel, 195 A.D.3d 852, 853, 150 N.Y.S.3d 120 [internal quotation marks and brackets omitted]). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of...