Broskett v. St. Catherine of Siena Nursing & Rehabilitation Care Ctr.

Opinion

Broskett v St. Catherine of Siena Nursing & Rehabilitation Care Ctr.

2026 NY Slip Op 05004

August 19, 2026

Appellate Division, Second Department

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

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

Nicoletta M. Broskett, etc., appellant,

v

St. Catherine of Siena Nursing and Rehabilitation Care Center, respondent.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2024-10685, (Index No. 607256/20)

Lara J. Genovesi, J.P.

Barry E. Warhit

Laurence L. Love

Susan Quirk, JJ.

Davis & Ferber, LLP, Islandia, NY (Jennifer A. Spellman of counsel), for appellant.

Barbiero Bisch O'Connor & Commander, LLP, Melville, NY (Pamela M. Gleit of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated August 26, 2024. The order, insofar as appealed from, granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging medical malpractice and negligence.

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

In June 2020, Richard Broskett (hereinafter the decedent) commenced this action against the defendant, St. Catherine of Siena Nursing and Rehabilitation Care Center, inter alia, to recover damages for medical malpractice and negligence. Thereafter, the decedent died, and the plaintiff, the decedent's wife, was substituted for him in the action as the executor of his estate.

Following the completion of discovery, the defendant moved, among other things, for summary judgment dismissing the causes of action alleging medical malpractice and negligence. The plaintiff opposed the motion. In an order dated August 26, 2024, the Supreme Court, inter alia, granted those branches of the defendant's motion. The plaintiff appeals.

"'In distinguishing whether conduct should be deemed medical malpractice or ordinary negligence, the critical factor is the nature of the duty owed to the plaintiff that the defendant is alleged to have breached'" (Kelty v Genovese Drug Stores, Inc., 214 AD3d 776, 777, quoting Rabinovich v Maimonides Med. Ctr., 179 AD3d 88, 92-93). "[T]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts" (Butler v Wyckoff Hgts. Med. Ctr., 233 AD3d 745, 746 [internal quotation marks omitted]). "Thus, an action sounds in ordinary negligence when jurors can utilize their common everyday experiences to determine the allegations of a lack of due care" (Rabinovich v Maimonides Med. Ctr., 179 AD3d at 93). "'In contrast, an action sounds in medical malpractice where the determination involves a consideration of professional skill and judgment'" (Butler v [*2]Wyckoff Hgts. Med. Ctr., 233 AD3d at 746-747, quoting Rabinovich v Maimonides Med. Ctr., 179 AD3d at 93). Medical malpractice is "[a] negligent act or omission by a health care provider that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician to a particular patient" (Rabinovich v Maimonides Med. Ctr., 179 AD3d at 93).

Here, contrary to the plaintiff's contention, the conduct alleged in the complaint bears a substantial relationship to the defendant's medical treatment of the decedent, and sounds in medical malpractice (see Kelty v Genovese Drug Stores, Inc., 214 AD3d at 777; Rabinovich v Maimonides Med. Ctr., 179 AD3d at 93). Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging negligence.

"In moving for summary judgment dismissing a cause of action alleging medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff" (Attia v Klebanov, 192 AD3d 650, 651; see Mendoza v Maimonides Med. Ctr., 203 AD3d 715, 716). Once the defendant makes its prima facie showing "'the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden'" (Rico v New York Methodist Hosp., 242 AD3d 787, 788, quoting Piazza v NYU Hosps. Ctr., 208 AD3d 525, 526). "General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant physician's summary judgment motion" (Louz v Fatiha, 242 AD3d 1189, 1190 [internal quotation marks omitted]; see Mendoza v Maimonides Med. Ctr., 203 AD3d at 716-717).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice by submitting an expert affidavit from a physical therapist who opined, based upon his review of the medical records, deposition testimony, and pleadings, inter alia, that the defendant did not depart from accepted medical practice in its treatment of the decedent (see Mendoza v Maimonides Med. Ctr., 203 AD3d at 717).

In opposition, the plaintiff failed to raise a triable issue of fact. The affirmation of the plaintiff's expert was conclusory and speculative and, therefore, insufficient to raise a triable issue of fact (see Williams v Levine, 238 AD3d 960, 962; Weintroub v Maimonides Med. Ctr., 222 AD3d 915, 916). Further, the plaintiff's expert impermissibly attempted to assert a new theory of liability that was not alleged in the complaint or bill of particulars (see Mendoza v Maimonides Med. Ctr., 203 AD3d at 717).

Accordingly, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging medical malpractice.

GENOVESI, J.P., WARHIT, LOVE and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court