| Matter of Joseph v City of New York |
| 2010 NY Slip Op 04655 [74 AD3d 440] |
| June 1, 2010 |
| Appellate Division, First Department |
| Matter of Aubrey Joseph, Sr., Deceased, by Ethel Griffin, PublicAdministrator of New York County, Appellant, v City of New York et al., Defendants,and New York City Health and Hospitals Corporation, Respondent. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Jane L. Gordon of counsel), forrespondent.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered May 14, 2009,which granted the motion of defendant Health and Hospitals Corporation (HHC) for summaryjudgment on the claims against it, unanimously affirmed, without costs.
Plaintiff's decedent was treated at Lincoln Medical and Mental Health Center, a hospitalowned and operated by HHC, for injuries sustained after being struck by a fire truck. During hishospital stay, the decedent was followed by the trauma, neurosurgery and orthopedicsdepartments. A short leg cast was placed on the decedent's left foot. Daily follow-up entriesnoted continued monitoring of the patient's condition. Despite treatment, the decedent developedgangrene on his first and second toes, requiring amputation.
HHC established prima facie entitlement to summary judgment with its expert's affirmationsetting forth that treatment of the decedent was within and in accordance with good and acceptedpractice, and was not the proximate cause of the decedent's injuries. Indeed, HHC's expertaffirmed that the medical records did not show the cast on the decedent's left foot being appliedtoo tightly or inappropriately, that the decedent did suffer from severe peripheral vasculardisease of the left leg, and that it was this condition, combined with the crush injury to his leftfoot, that caused the gangrene. The expert opined that based on the comorbidities and theseverity of the risks involved, the decedent was not a candidate for bypass surgery, conservativemanagement of his gangrene was an appropriately reasonable exercise of judgment, and thetreatment rendered did not contribute to the decedent's injuries.
In opposition, plaintiff failed to raise an issue of fact (see Moore v New York Med. Group, P.C., 44 AD3d 393, 395[2007], lv dismissed 10 NY3d 740 [2008]). Plaintiff's expert's affirmation wasconclusory and did not adequately address the prima facie showing in the detailed affirmation ofHHC's expert (see Rodriguez v Montefiore Med. Ctr., 28 [*2]AD3d 357 [2006]; see also DeCintio v Lawrence Hosp., 33 AD3d 329 [2006]).Plaintiff's expert affirmed that the cast was applied "unnecessarily" and had not been monitored"properly." However, he failed to address what other treatment modalities would have beenappropriate, whether the treatment provided to the decedent was conservative management of hisgangrene, or what, if any, impact the crush injury had on the development of gangrene. Nor didthis expert respond to HHC's expert's assertion that the cast was an appropriate treatment for apatient presenting with the decedent's symptoms. Concur—Mazzarelli, J.P., McGuire,DeGrasse, Freedman and Richter, JJ.