| Kane v Ausubel |
| 2007 NY Slip Op 07664 [44 AD3d 717] |
| October 9, 2007 |
| Appellate Division, Second Department |
| Pamela Kane, Respondent, v Ian Frederick Ausubel,Appellant, et al., Defendant. |
—[*1] Gary S. Alweiss, Garden City, N.Y. (Theodore A. Naima of counsel), forrespondent.
In an action to recover damages for medical malpractice, etc., the defendant Ian FrederickAusubel appeals from an order of the Supreme Court, Queens County (Nelson, J.), dated October17, 2006, which denied his motion for summary judgment dismissing the complaint insofar asasserted against him.
Ordered that the order is reversed, on the law, with costs, and the motion of the defendant IanFrederick Ausubel for summary judgment dismissing the complaint insofar as asserted againsthim is granted.
The plaintiff's decedent allegedly sustained fatal injuries when he fell from his bed in anursing home. The defendant Ian Frederick Ausubel (hereinafter the defendant), a physician atthe nursing home, established his prima facie entitlement to summary judgment by adducingevidence that he had ordered the use of side rails on the decedent's bed in order to prevent thedecedent from falling out. In opposition to the defendant's prima facie showing, the plaintifffailed to raise a triable issue of fact. The expert affidavit proffered by the plaintiff, which reliedupon facts contradicted by the record, was speculative and conclusory, and thus did not raise atriable issue of fact (see Romano v Stanley, 90 NY2d 444, 451-452 [1997]; Rodriguez v Montefiore Med. Ctr., 28AD3d 357 [2006]; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359 [1998]).
Accordingly, the defendant's motion for summary judgment dismissing the complaint [*2]insofar as asserted against him should have been granted. Schmidt,J.P., Goldstein, Skelos and Fisher, JJ., concur.