De Boer v. Lloyd's Shopping Center, Inc.

115 A.D.2d 633, 496 N.Y.S.2d 292, 1985 N.Y. App. Div. LEXIS 55073

Opinion

In an action to recover damages for wrongful death, etc., defendant appeals from an order of the Supreme Court, Orange County (Palella, J.), dated June 5, 1984, which denied its motion pursuant to CPLR 3212 for summary judgment dismissing the complaint.

Order reversed, on the law, with costs, motion granted, and complaint dismissed.

This action, inter alia, to recover damages for wrongful death is predicated on decedent’s fall on defendant’s premises. However, decedent’s medical records, prepared subsequently to his fall, reveal that the fall caused him relatively minor and insignificant injuries and that this 80-year-old decedent had a preexisting medical history of pulmonary edema and congestive heart failure which could very well have caused his death. Accordingly, the absence of a medical affidavit must be deemed fatal to plaintiffs cause. We note particularly that no affidavit has been submitted from decedent’s long-time treating physician to whom he was referred following emergency room treatment after his fall. As it was plaintiffs responsibility in opposing this motion for summary judgment to lay bare his proof and show validity to his claims, which he did not do, this motion must be granted and the complaint dismissed. Gibbons, J. P., Brown, Weinstein and Lawrence, JJ., concur.