| Eckman v Cipolla |
| 2010 NY Slip Op 07307 [77 AD3d 704] |
| October 12, 2010 |
| Appellate Division, Second Department |
| Susan Eckman, Appellant, v Anthony Cipolla et al.,Respondents, et al., Defendant. |
—[*1] Callan, Koster, Brady & Brennan LLP, New York, N.Y. (Michael P. Kandler and Stephen J.Barrett of counsel), for respondent Anthony Cipolla. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Drake A.Colley of counsel), for respondents City of New York, New York City Fire Department, Gerald J.Moriarty, and Ira Feirstein.
In an action, inter alia, to recover damages for medical malpractice, the plaintiff appeals, as limitedby her brief, from so much of an order of the Supreme Court, Kings County (Steinhardt, J.), datedMay 19, 2009, as granted the motion of the defendant Anthony Cipolla which was for summaryjudgment dismissing the complaint insofar as asserted against him and granted that branch of the motionof the defendants City of New York, New York City Fire Department, and Gerard J. Moriarty, whichwas for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs payable to therespondents appearing separately and filing separate briefs.
In this medical malpractice action, the plaintiff, Susan Eckman, seeks to recover damages for thealleged wrongful death and pain and suffering of her late husband, the decedent James M. ManganaroIII (hereinafter the decedent). The decedent died on December 8, 2004, by a self-inflicted gunshotwound to the head. Prior to that, he had been treated for, inter alia, anxiety and depression, withmedication prescribed by his primary physician, the defendant Anthony Cipolla. He also was receivingcounseling therapy from a social worker, the defendant Gerald J. Moriarty, through his employers'benefit program (the decedent was a firefighter for the defendant New York City Fire Department).Generally, among other things, the plaintiff claims that Cipolla failed to monitor the decedent whileprescribing psychotropic medications, and that Moriarty failed to perform a complete assessment of thedecedent's mental status, particularly on the two days he expressed suicidal ideation, August 22, 2004,and December 7, 2004.
Cipolla, Moriarty, the defendant City of New York, and the defendant New York City FireDepartment (the latter two hereinafter together the City defendants), demonstrated their prima facieentitlement to judgment as a matter of law with the submission of medical and clinical social workexpert affirmations, the parties' deposition testimony, and the relevant medical records. Cipolla, [*2]the physician who medically treated the decedent for various mentalhealth issues such as depression and anxiety prior to the decedent's suicide, established the absence ofany departure from good and accepted medical practice and, in any event, that any departure was not aproximate cause of the plaintiff's injuries (seeKeevan v Rifkin, 41 AD3d 661, 662 [2007]; Williams v Sahay, 12 AD3d 366, 368 [2004]). Moriarty, the certifiedsocial worker who counseled the decedent prior to his suicide, established, inter alia, that his course oftreatment of the decedent, particularly his assessment that the decedent was not in danger of harminghimself or others during the two instances at issue here when the decedent expressed suicidal ideation,was made after a careful evaluation and was not "something less than a professional" judgment, suchthat liability would ensue (Bell v New York City Health & Hosps. Corp., 90 AD2d 270, 282[1982]; see Betty v City of New York,65 AD3d 507 [2009]; Weinreb v Rice, 266 AD2d 454 [1999]; Ibguy v State of NewYork, 261 AD2d 510 [1999]; Darren v Safier, 207 AD2d 473 [1994]).
In opposition, the plaintiff failed to raise a triable issue of fact (see Zuckerman v City of NewYork, 49 NY2d 557 [1980]; Bell v New York City Health & Hosps. Corp., 90 AD2d270, 281 [1982]). The affidavit of the plaintiff's expert, who opined, inter alia, that Cipolla and Moriartydeparted from good and accepted medical practice pertaining to mental health care providers, wasconclusory, speculative, and unsupported by the record (see Alvarez v Prospect Hosp., 68NY2d 320, 325 [1986]) and, therefore, failed to raise a triable issue of fact (see Darren vSafier, 207 AD2d 473 [1994]; Mohan v Westchester County Med. Ctr., 145 AD2d 474,475 [1988]).
Accordingly, the Supreme Court properly granted Cipolla's motion for summary judgmentdismissing the complaint insofar as asserted against him, and that branch of the motion by Moriarty andhis employers, the City defendants, which was for summary judgment dismissing the complaint insofaras asserted against them. Rivera, J.P., Dickerson, Eng and Austin, JJ., concur.