| Volovar v Catholic Health Sys. of Long Is., Inc. |
| 2009 NY Slip Op 00527 [58 AD3d 830] |
| January 27, 2009 |
| Appellate Division, Second Department |
| Karen Volovar, Appellant, v Catholic Health System ofLong Island, Inc., et al., Respondents. |
—[*1] Bower & Lawrence, P.C., New York, N.Y. (Mitchell A. Greene of counsel), for respondentsCatholic Health System of Long Island, St. Francis Hospital, Paul S. Damus, M.D., P.C., andPaul S. Damus. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro,Jr., Gina B. DiFolco, and Adonaid C. Medina of counsel), for respondents Pediatric Cardiologyof Long Island, P.C., and Milton J. Reitman.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, aslimited by her brief, from so much of an order of the Supreme Court, Suffolk County (R. Doyle,J.), entered May 30, 2007, as granted those branches of the separate motions of the defendantsPediatric Cardiology of Long Island, P.C., and Milton J. Reitman, and the defendants CatholicHealth System of Long Island, Inc., St. Francis Hospital, Paul S. Damus, M.D., P.C., and Paul S.Damus, which were for summary judgment dismissing the 5th and 6th causes of action torecover damages for negligent misrepresentation, and the 9th, 10th, 11th, and 12th causes ofaction to recover damages for negligence per se.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable tothe defendants appearing separately and filing separate briefs.[*2]
The plaintiff's decedent, Karl Volovar, who suffered froma congenital heart malformation, was admitted to the defendant St. Francis Hospital (hereinafterthe hospital) on March 31, 2000, for treatment of congestive heart failure. After his conditionstabilized, on April 5, 2000, he was discharged from the hospital by the defendant cardiologistMilton J. Reitman, with the instruction to seek a surgical consultation from the defendant cardiacsurgeon Paul S. Damus, who had performed cardiac surgery on the decedent in 1980. During aconsultation on April 17, 2000, with the decedent, Damus recommended that he undergo valvereplacement surgery, but first required that the decedent obtain surgical clearance from apulmonologist due to an underlying medical condition. There is no evidence in the record thatthe decedent ever obtained surgical clearance from a pulmonologist, or that he returned toReitman or Damus to schedule surgery. The decedent died less than two months later, on June 4,2000, from cardiac arrest.
The defendants met their burden of establishing their prima facie entitlement to judgment asa matter of law dismissing the causes of action to recover damages for negligentmisrepresentation and negligence per se (see Wong v Gottbetter, 18 AD3d 541 [2005]; see also Fresh Direct v Blue MartiniSoftware, 7 AD3d 487, 489 [2004]; cf. Graham v Columbia Presbyt. Med. Ctr.,185 AD2d 753 [1992]). In opposition, the plaintiff failed to raise a triable issue of fact sincethe affidavits of her two experts were merely speculative. Neither expert supported his opinionthat, because the decedent lacked medical insurance, the defendants provided him withinadequate treatment or inadequate discharge instructions, by referencing any "foundationalscientific basis" (Romano v Stanley, 90 NY2d 444, 452 [1997]) demonstrating theproper treatment for someone with the decedent's medical history or condition. Accordingly,because the opinions of the plaintiffs' experts were merely speculative, their affidavits wereproperly accorded no probative force and were insufficient to raise a triable issue of fact (seeDiaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]; Romano v Stanley,90 NY2d at 452; Levy v Kung SitHuie, 54 AD3d 731 [2008]; Moore v New York Med. Group, P.C., 44 AD3d 393 [2007]; Keevan v Rifkin, 41 AD3d 661[2007]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Santucci, McCarthy andDickerson, JJ., concur.