| Rosen v John J. Foley Skilled Nursing Facility |
| 2007 NY Slip Op 08433 [45 AD3d 558] |
| November 7, 2007 |
| Appellate Division, Second Department |
| Sara Rosen, Appellant, v John J. Foley Skilled NursingFacility et al., Respondents. |
—[*1] Fumuso, Kelly, DeVerna, Snyder, Swart & Farrell, LLP, Hauppauge, N.Y. (Scott G.Christesen of counsel), for respondents.
In an action to recover damages for medical malpractice and wrongful death, the plaintiffappeals from an order of the Supreme Court, Suffolk County (Doyle, J.), dated June 7, 2006,which granted the defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
To establish a prima facie case of liability in a medical malpractice action, a plaintiff mustestablish (1) the standard of care in the locality where the treatment occurred, (2) that thedefendant breached that standard of care, and (3) that the breach was the proximate cause of theinjury (see Pace v Jakus, 291 AD2d 436 [2002]; Berger v Becker, 272 AD2d 565[2000]). Here, the defendants established their entitlement to judgment as a matter of law withrespect to the plaintiff's cause of action alleging medical malpractice by demonstrating that theydid not depart from the accepted standards of care (see Alvarez v Prospect Hosp., 68NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]).
The burden then shifted to the plaintiff to demonstrate the existence of a triable issue of fact(see Micciola v Sacchi, 36 AD3d869 [2007]; Kaplan v Hamilton Med. Assoc., 262 AD2d 609 [1999]). Contrary tothe plaintiff's contentions, the affidavit submitted by her medical expert is conclusory, [*2]and did not establish any departure from acceptable standards ofskilled nursing care by the defendant John J. Foley Skilled Nursing Facility, particularly giventhe increased supervision and restraining measures already implemented with respect to theplaintiff's decedent (see DiGiaro vAgrawal, 41 AD3d 764 [2007]; Yamin v Baghel, 284 AD2d 778, 779 [2001];Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 358-359 [1998]). Accordingly, theSupreme Court properly granted the defendants' motion for summary judgment dismissing thecomplaint.
The plaintiff's remaining contentions are without merit. Miller, J.P., Ritter, Santucci andBalkin, JJ., concur.