| Poblocki v Todoro |
| 2008 NY Slip Op 02320 [49 AD3d 1239] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| Arthur R. Poblocki, Individually and as Administrator of the Estateof Eileen M. Poblocki, Deceased, Respondent, v Carmen Todoro, M.D., et al., Defendants, andMcAuley Seton Home Care, Appellant. |
—[*1] Mark A. Campbell, Valhalla (Jason A. Richman of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered May7, 2007 in a medical malpractice action. The order, insofar as appealed from, denied that part ofthe motion of defendant McAuley Seton Home Care for summary judgment dismissing thecomplaint against it.
It is hereby ordered that the order so appealed from is unanimously modified on the law bygranting the motion of defendant McAuley Seton Home Care in its entirety and dismissing thecomplaint and cross claim against it and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for the alleged medicalmalpractice of defendants in their diagnosis and treatment of his wife (decedent), who sustained acerebral vasospasm following a craniotomy and clipping of a leaking aneurysm, resulting inneurological impairment and, eventually, in death. We conclude that Supreme Court erred indenying those parts of the motion of McAuley Seton Home Care (defendant) for summaryjudgment dismissing the first cause of action, for negligence, the third cause of action, for loss ofservices and consortium, and the cross claim against it, and we therefore modify the orderaccordingly. Defendant met its initial burden by demonstrating that its nursing staff compliedwith orders given by decedent's physician, including the revised order that home care nursingvisits need not be conducted over the weekend, and those orders were not "so clearlycontraindicated by normal practice that ordinary prudence require[d] inquiry [by defendant] intothe correctness of the orders" (Toth v Community Hosp. at Glen Cove, 22 NY2d 255,265 [1968], rearg denied 22 NY2d 973 [1968]; see Walter v Betancourt, 283AD2d 223, 224 [2001]; Nagengast v Samaritan Hosp., 211 AD2d 878, 880 [1995]).[*2]
Plaintiff failed to raise a triable issue of fact sufficient todefeat those parts of defendant's motion with respect to the first and third causes of action and thecross claim (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).We note in particular that the redacted affidavits of plaintiff's experts are both speculative andconclusory inasmuch as they fail to set forth the manner in which the actions of defendant or itsnursing staff deviated from the standard of care (see Selmensberger v Kaleida Health, 45 AD3d 1435, 1436 [2007];Moticik v Sisters Healthcare, 19AD3d 1052, 1053 [2005]). Plaintiff also failed to submit evidence raising a triable issue offact whether defendant's actions were a proximate cause of decedent's injuries and death, i.e.,evidence that earlier detection of decedent's aneurysm and performance of the procedures wouldhave prevented decedent from developing a cerebral vasospasm (see Rodriguez v New YorkCity Health & Hosps. Corp., 245 AD2d 174, 175 [1997]; Bartha v Lombardo &Assoc., 212 AD2d 494 [1995]; seealso Sawczyn v Red Roof Inns, Inc., 15 AD3d 851, 852 [2005], lv denied 5NY3d 710 [2005]). Present—Scudder, P.J., Hurlbutt, Lunn, Pine and Gorski, JJ.