Lorber v. Prospect Park Nursing Home, Inc.

289 A.D.2d 303, 734 N.Y.S.2d 865, 2001 N.Y. App. Div. LEXIS 11995

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 2001
• Status: Published

Opinion

In an action, inter alia, to recover damages for personal injuries, etc., the plaintiff appeals from an order of the Supreme Court, Kings County (Patterson, J.), dated July 17, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

Jacob Lorber was found in his bed in the defendant’s nursing home facility, with edema and redness of his left foot and ankle which was painful to the touch. Subsequent X-rays revealed that Lorber had a fractured left fibula and tibia. Lorber was unable, due to his medical infirmities, to explain what may have caused the fracture, and there were no witnesses to any event which may have caused the injuries. Additionally, Lorber’s medical chart did not contain any entries or notations relating to any occurrence which may have caused the injuries. The plaintiff commenced this action against the defendant alleging that Lorber must have received these injuries as the result of a fall from his bed.

On its motion for summary judgment, the defendant submitted proof in admissible form demonstrating its entitlement to judgment as a matter of law (see, Alvarez v Prospect Hosp., 68 NY2d 320). In opposition to the motion, the plaintiff’s assertions concerning the defendant’s negligence were, purely speculative, and unsupported by any competent evidence. Thus, they were insufficient to defeat a motion for summary judgment (see, CPLR 3212 [b]; Schiavone v Victory Mem. Hosp., 279 AD2d 464; Damen v North Shore Univ. Hosp., 262 AD2d 598; cf., Weber v Levine, 281 AD2d 474).

The plaintiffs remaining contention is without merit. O’Brien, J. P., Florio, Schmidt and Smith, JJ., concur.