Marsh v. City of N.Y.

191 A.D.3d 973

142 N.Y.S.3d 598

Denise MARSH, etc., et al., appellants,

v.CITY OF NEW YORK, et al., defendants,Staten Island University Hospital, respondent.

2019–03540

Index No. 101947/13

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

Argued—December 10, 2020

February 24, 2021

Efrom J. Gross (Ephrem J. Wertenteil, New York, NY, of counsel), for appellants.

Gerspach Sikoscow LLP, New York, N.Y. (Alexander Sikoscow and Kristen J. Halford of counsel), for respondent.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In an action to recover damages for wrongful death, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Thomas P. Aliotta, J.), dated February 13, 2019. The order, insofar as appealed from, granted the motion of the defendant Staten Island University Hospital for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The decedent was diagnosed with asthma at an early age and used a nebulizer as needed. On the evening of November 27, 2012, the decedent, then seven years old, told her mother, the plaintiff Denise Marsh, that she could not breathe, which prompted Marsh to administer the nebulizer treatment and call the 911 emergency number. Paramedics arrived shortly thereafter and transported the decedent to the defendant Staten Island University Hospital (hereinafter SIUH), where she died that evening. The autopsy report stated that the cause of death was "acute bronchial asthma."

The plaintiffs commenced this action against SIUH, among others, alleging, inter alia, that the paramedics, as agents of SIUH, were negligent in failing to timely perform CPR on the decedent, which resulted in the decedent's death. Following discovery, SIUH moved for summary judgment dismissing the complaint insofar as asserted against it. In an order dated February 13, 2019, the Supreme Court, among other things, granted SIUH's motion. The plaintiffs appeal.

"[T]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of medical practice, and evidence that such deviation or departure was a proximate cause of injury or damage" ( Raucci v. Shinbrot, 127 A.D.3d 839, 841, 5 N.Y.S.3d 314 ). "[A] defendant physician seeking summary judgment must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" ( Stukas v. Streiter, 83 A.D.3d 18, 24, 918 N.Y.S.2d 176 ). A defendant's expert's affidavit or affirmation that "merely recount[s] the treatment rendered and opine[s] in a conclusory manner that such treatment did not represent a departure from good and accepted medical practice" is insufficient to meet this burden ( Barlev v. Bethpage Physical Therapy Assoc., P.C., 122 A.D.3d 784, 784, 995 N.Y.S.2d 514 ; see Couch v. County of Suffolk, 296 A.D.2d 194, 198, 746 N.Y.S.2d 187 ). In opposing the motion, a plaintiff "must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). A plaintiff's expert's affidavit or affirmation "that is conclusory or speculative is insufficient to raise a triable issue of fact in opposition to a defendant's prima facie showing of entitlement to judgment as a matter of law in a medical malpractice action" ( Barrocales v. New York Methodist Hosp., 122 A.D.3d 648, 649, 996 N.Y.S.2d 155 ; see Gillespie v. New...