Deluca v. Golden Gate Rehabilitation & Health Care Ctr., LLC

Opinion

Deluca v Golden Gate Rehabilitation & Health Care Ctr., LLC

2026 NY Slip Op 05161

September 2, 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.

Frank Deluca, etc., appellant,

v

Golden Gate Rehabilitation and Health Care Center, LLC, respondent.

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

Decided on September 2, 2026

2023-06475, (Index No. 150324/20)

Hector D. Lasalle, P.J.

Francesca E. Connolly

Janice A. Taylor

Elena Goldberg Velazquez, JJ.

Sinel & Olesen, PLLC, New York, NY (Luis A. Umana of counsel), for appellant.

Kaufman Borgeest & Ryan LLP, Valhalla, NY (Jacqueline Mandell and Lisa Fleischmann of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and violation of Public Health Law § 2801-d, the plaintiff appeals from an order of the Supreme Court, Richmond County (Charles M. Troia, J.), dated May 10, 2023. The order granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In February 2020, the plaintiff, individually and as executor of the estate of Amelia Deluca (hereinafter the decedent), commenced this action against the defendant, inter alia, to recover damages for medical malpractice and violation of Public Health Law § 2801-d, in connection with the care the defendant provided to the decedent. In November 2022, the defendant moved for summary judgment dismissing the complaint. The plaintiff opposed. In an order dated May 10, 2023, the Supreme Court granted the defendant's motion. The plaintiff appeals.

Contrary to the plaintiff's contention, 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. "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" (Rico v New York Methodist Hosp., 242 AD3d 787, 788 [internal quotation marks omitted]; see Williams v Levine, 238 AD3d 960, 960-961). "In order to sustain this prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars" (Torres v New York City Health & Hosps. Corp., 238 AD3d 798, 799 [internal quotation marks omitted]). "If the defendant meets this burden, the plaintiff, in opposition, must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden, including by rebutting the specific assertions of the defendant's expert" (id. [alterations and internal quotation marks omitted]; see Mathura v Makaryus, 237 AD3d 808, 810).

Here, the defendant established its prima facie entitlement to judgment as a matter [*2]of law dismissing the cause of action alleging medical malpractice by submitting, among other things, an affirmation of an expert physician, who opined that the defendant did not depart from accepted standards of care with regard to the decedent. The affirmation of the defendant's expert established, inter alia, that all appropriate fall prevention measures were implemented at the time of the decedent's falls and, in any event, that the absence of certain additional fall prevention measures, which were not indicated, were not a proximate cause of the decedent's injuries. The defendant's expert further opined that the defendant did not exacerbate any progression of the decedent's preexisting diseases and did not deviate from accepted standards of care for the decedent's preexisting diseases and that any alleged deviation was not a proximate cause of the decedent's death (see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 704; Domoroski v Smithtown Ctr. for Rehabilitation & Nursing Care, 95 AD3d 1165, 1166). In opposition, the plaintiff's expert did not raise a triable issue of fact, as the plaintiff's expert's affidavit failed to rebut the defendant's expert's specific assertions and was otherwise speculative, conclusory, and unsupported by the record (see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d at 704; Lagatta v Rivera, 217 AD3d 757, 759).

The Supreme Court also properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Public Health Law § 2801-d. Liability under Public Health Law § 2801-d "contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the 'facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient'" (Zeides v Hebrew Home for Aged at Riverdale, 300 AD2d 178, 179, quoting Public Health Law § 2801-d[1], [2]; see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d at 705). Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging a violation of Public Health Law § 2801-d by submitting the affirmation of its expert physician, who opined that the defendant exercised all care reasonably necessary to prevent and limit the deprivation of rights and injuries to the decedent and did not violate the various state regulations set forth in the plaintiff's bill of particulars as the basis for this cause of action (see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d at 705; Schwartz v Partridge, 179 AD3d 963, 965). In opposition, the plaintiff failed to raise a triable issue of fact, as the affidavit of his expert offered conclusory and unsubstantiated allegations of violations of certain regulations (see Ciccotto v Fulton Commons Care Ctr., Inc., 149 AD3d 1030, 1031; Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834).

The plaintiff's remaining contentions are without merit.

LASALLE, P.J., CONNOLLY, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court