Mondello v. Franklin Hospital Medical Center

289 A.D.2d 210, 734 N.Y.S.2d 853, 2001 N.Y. App. Div. LEXIS 11832

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 3, 2001
• Status: Published

Opinion

In an action, inter alia, to recover damages for wrongful death, etc., the plaintiff appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), entered June 2, 2000, which granted the defendants’ separate motions for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with one bill of costs.

The plaintiffs cause of action sounding in wrongful death was previously dismissed as time-barred. The defendants, on their motion for summary judgment, established, prima facie, their entitlement to judgment as a matter of law with respect to the remaining causes of action to recover damages for conscious pain and suffering, and the derivative claim (see, O’Shaughnessy v Hines, 248 AD2d 687; Bellino v Spatz, 233 AD2d 355). The burden then shifted to the plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert’s affidavit attesting to a departure from accepted practice and containing an opinion that the defendants’ acts or omissions were a proximate cause of the injury (see, Domaradzki v Glen Cove Ob/Gyn Assocs., 242 AD2d 282). The affidavit of the plaintiffs expert stated that the defendants’ departures from accepted medical practice were “directly related” to the decedent’s death, but did not state that those departures were a proximate cause of her conscious pain and suffering. That affidavit was insufficient to defeat the defendants’ motions for summary judgment (see, Yasin v Manhattan Eye, Ear & Throat Hosp., 254 AD2d 281; Fritz v Southside Hosp., 182 AD2d 671). Ritter, J. P., Krausman, Goldstein and S. Miller, JJ., concur.