Scopinich v. Brookhaven Mem. Hosp. Med. Ctr., Inc.

Opinion

Scopinich v Brookhaven Mem. Hosp. Med. Ctr., Inc.

2026 NY Slip Op 05204

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.

Angela Scopinich, etc., respondent,

v

Brookhaven Memorial Hospital Medical Center, Inc., etc., et al., defendants, Brookhaven Health Care Facility, LLC, appellant.

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

Decided on September 2, 2026

2024-08638, (Index No. 605301/21)

Hector D. Lasalle, P.J.

Cheryl E. Chambers

Paul Wooten

Helen Voutsinas, JJ.

Gallardo Levin Reiter & Rogers, LLP, Jericho, NY (Ralph A. Catalano and Michele R. Levin of counsel), for appellant.

Rizzuto Law Firm, Uniondale, NY (A. Lyn Peterson of counsel), for respondent.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, the defendant Brookhaven Health Care Facility, LLC, appeals from an order of the Supreme Court, Suffolk County (Paul M. Hensley, J.), dated May 14, 2024. The order, insofar as appealed from, denied that branch of that defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the motion of the defendant Brookhaven Health Care Facility, LLC, which was for summary judgment dismissing the complaint insofar as asserted against it is granted.

In March 2021, the plaintiff commenced this action, inter alia, to recover damages for medical malpractice against, among others, the defendant Brookhaven Health Care Facility, LLC (hereinafter the defendant), alleging, among other things, that the plaintiff's decedent died as a result of negligent medical care received while she was a patient at a nursing and rehabilitation facility operated by the defendant. Thereafter, the defendant moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against it. In an order dated May 14, 2024, the Supreme Court, among other things, denied that branch of the defendant's motion. The defendant appeals.

"'The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury'" (Delia v Wieder, 236 AD3d 857, 858, quoting Sunshine v Berger, 214 AD3d 1020, 1022). "'On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries'" (Connolly v Sanders, 239 AD3d 594, 595, quoting Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d 858, 859-860). "'If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof'" (id., quoting Stewart v North Shore Univ. Hosp. at Syosset, 204 AD3d at 860).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging medical malpractice insofar as asserted against it by submitting, inter alia, an affirmation of its expert, who opined that, based upon his review of, among other things, medical records and transcripts of deposition testimony, the defendant did not depart from good and accepted medical practice in its treatment and care of the decedent (see Delia v Wieder, 236 AD3d at 858; Borodkin v Friedwald Ctr. for Rehabilitation & Nursing, LLC, 225 AD3d 657, 658). In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendant departed from good and accepted medical practice. The affirmation of the plaintiff's expert was conclusory, speculative, and failed to address specific opinions offered by the defendant's expert, and therefore, was insufficient to raise a triable issue of fact (see DePasquale v Staten Is. Univ. Hosp., 244 AD3d 1065, 1066-1067; Corujo v Caputo, 224 AD3d 729, 732). Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging medical malpractice insofar as asserted against it.

Since the causes of action alleging wrongful death and negligence were premised on the defendant's alleged malpractice, the Supreme Court also should have granted those branches of the defendant's motion which were for summary judgment dismissing the causes of action alleging wrongful death and negligence insofar as asserted against it (see Ahmed v Pannone, 116 AD3d 802, 806).

With regard to the cause of action premised on an alleged violation of Public Health Law § 2801-d, liability under the Public Health Law "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[2]; see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d 702, 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, who averred that the defendant did not violate any applicable federal or state regulation (see Schwartz v Partridge, 179 AD3d 963, 965). In opposition, the plaintiff's expert relied upon facts that were contradicted or unsupported by the record and offered only conclusory allegations of regulatory violations, which was insufficient to raise a triable issue of fact (see Van DeVeerdonk v North Westchester Restorative Therapy & Nursing Ctr., 223 AD3d at 705-706; Schwartz v Partridge, 179 AD3d at 965). Accordingly, the Supreme Court should have 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 insofar as asserted against it.

The Supreme Court also should have granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging negligence per se insofar as asserted against it. "'[V]iolation of a State statute that imposes a specific duty constitutes negligence per se'" (Rivera v 203 Chestnut Realty Corp., 173 AD3d 1085, 1087, quoting Elliott v City of New York, 95 NY2d 730, 734). Here, the defendant established, prima facie, that it did not violate any State statute (see id.). In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contention is without merit.

Accordingly, the Supreme Court should have granted that branch of the defendant's motion which was for summary judgment dismissing the complaint insofar as asserted against it.

LASALLE, P.J., CHAMBERS, WOOTEN and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court