| Post v County of Suffolk |
| 2011 NY Slip Op 00369 [80 AD3d 682] |
| January 18, 2011 |
| Appellate Division, Second Department |
| Melinda Post, Respondent, v County of Suffolk et al.,Appellants. |
—[*1] Bower & Lawrence, P.C., New York, N.Y. (Sari Havia of counsel), for appellant St.Catherine of Siena Medical Center Lite & Russell, West Islip, N.Y. (Frank S. Russell of counsel), for respondent.
In an action, inter alia, to recover damages for medical malpractice, the defendant County ofSuffolk appeals, as limited by its brief, from so much of an order of the Supreme Court, SuffolkCounty (Tanenbaum, J.), dated July 21, 2009, as denied its motion for summary judgmentdismissing the complaint insofar as asserted against it, and the defendant St. Catherine of SienaMedical Center, sued herein as St. Catherine's Hospital of Sienna, separately appeals, as limitedby its brief, from so much of the same order as granted those branches of the plaintiff's crossmotion which were, in effect, for leave to amend the caption to reflect its correct name, and forleave to amend the complaint to add St. Catherine of Siena Nursing Home as a party defendant,and denied its separate motion for summary judgment dismissing the complaint insofar asasserted against it.
Ordered that the order is reversed insofar as appealed from by the defendant County ofSuffolk, and the motion of that defendant for summary judgment dismissing the complaintinsofar as asserted against it is granted; and it is further,
Ordered that the order is affirmed insofar as appealed from by the defendant St. Catherine ofSiena Medical Center; and it is further,
Ordered that one bill of costs is awarded to the defendant County of Suffolk, payable by theplaintiff, and one bill of costs is awarded to the plaintiff, payable by the defendant St. Catherineof Siena Medical Center.
The plaintiff's decedent was authorized to receive home health services upon her dischargefrom St. Catherine of Siena Nursing Home (hereinafter the nursing home) after undergoingapproximately three months of rehabilitation for a fractured hip. Patricia Chieffo, a registerednurse and medical services specialist employed by the Special Projects Unit of the SuffolkCounty Department of Social Services (hereinafter the DSS), authorized the decedent to receive26 hours per week of home health aide services for assistance in such daily tasks as bathing,dressing, meal preparation, and household cleaning. The decedent was discharged from thenursing home on June 1, 2005; a home health aide was scheduled to arrive the next morning. OnJune 2, 2005, the aide had still not arrived when, at approximately 2:00 p.m., the decedentallegedly fell and injured her right hip and wrist while attempting to prepare her own lunch. Shewas transported to the emergency room at St. Catherine of Siena Medical Center (hereinafter thehospital), and was later admitted to the hospital.
When an orthopedic surgeon examined the decedent in the emergency room on the eveningof June 2, 2005, the surgeon found her to be alert and oriented. The next time the surgeonexamined the decedent, at approximately 7:40 a.m. the next morning, the decedent's status hadchanged to "difficult to arouse," meaning that she was not responding to verbal stimuli. ACT-scan revealed that the decedent had sustained a large right acute subdural hematoma on thebrain. She died several days later, on June 7, 2005, never having wakened from her coma.According to the death certificate, death was caused by "blunt force head trauma."
The decedent's daughter commenced this action sounding in medical malpractice against thehospital, and asserted a common-law negligence cause of action against the County of Suffolkfor the alleged acts and omissions of Chieffo and the DSS. The County and the hospitalseparately moved for summary judgment dismissing the complaint insofar as asserted againsteach of them. The Supreme Court, inter alia, granted that branch of the plaintiff's cross motionwhich was for leave to amend the complaint to properly name the hospital as a party defendant,and denied the motions, finding the existence of triable issues of fact.
The Supreme Court erred in denying the County's motion, as the evidence submitted insupport of the motion established that the County was immune from liability for the acts of itsemployee. "A public employee's discretionary acts—meaning conduct involving theexercise of reasoned judgment—may not result in the municipality's liability even whenthe conduct is negligent" (Lauer v City of New York, 95 NY2d 95, 99 [2000]; see McLean v City of New York, 12NY3d 194, 202 [2009]; Tango v Tulevech, 61 NY2d 34, 41 [1983]). The plaintiffcontends that the County was negligent since the decedent was permitted to be discharged fromthe nursing home without a home health care aide. The conduct targeted here—theevaluation of the decedent's needs for assistance with the acts of daily living, made by a nurseemployed by the County, as well as the nurse's authorization of the provision of services to meetthose needs—clearly involved "reasoned judgment" and, consequently, constituted a"discretionary act[ ]" (Lauer v City of New York, 95 NY2d at 99). "Government action, ifdiscretionary, may not be a basis for liability" (McLean v City of New York, 12 NY3d at203).
Accordingly, the County established its prima facie entitlement to judgment as a matter oflaw dismissing the complaint insofar as asserted against it (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).In opposition to the County's showing, the plaintiff failed to raise a triable issue of fact.
The Supreme Court, however, properly denied summary judgment to the hospital, on theground that it failed to meet its initial burden, as the movant, of establishing its prima facieentitlement to judgment as a matter of law. Failure to make a prima facie showing requires denialof the motion, "regardless of the sufficiency of the opposing papers" (Alvarez v ProspectHosp., 68 NY2d at 324; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853[1985]; Chance v Felder, 33 AD3d645, 645 [2006]). Here, the hospital failed to submit any expert affidavit, in connection withthe treatment it rendered to the decedent after June 2, 2005, showing "[an] absence of anydeparture from good and accepted medical practice or that any departure was not the proximatecause of the alleged injuries" (Thurstonv Interfaith Med. Ctr., 66 AD3d 999, 1001 [2009]; see Larsen v Loychusuk, 55 AD3d 560, 561 [2008]; Sandmann v Shapiro, 53 AD3d537 [2008]). While the hospital contends that the plaintiff failed to submit an expert'saffidavit in opposition to its motion, the hospital itself failed to submit an expert's affidavit inorder to establish its prima facie entitlement to judgment as a matter of law. Accordingly, theburden never shifted to the plaintiff, and the hospital could not satisfy its burden by merelypointing to gaps in the plaintiff's proof (see Fotiou v Goodman, 74 AD3d 1140, 1141 [2010]).[*2]
The Supreme Court properly granted those branches ofthe plaintiff's cross motion which were, in effect, for leave to amend the caption to reflect thehospital's correct name and for leave to amend the complaint to add the nursing home as a partydefendant, since the those parties did not allege any "prejudice or surprise directly resulting fromthe delay in seeking leave," or that "the proposed amendment is palpably insufficient or patentlydevoid of merit" (Aurora Loan Servs.,LLC v Thomas, 70 AD3d 986, 987 [2010]; see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220,222 [2008]; G.K. Alan Assoc., Inc. vLazzari, 44 AD3d 95, 99 [2007], affd 10 NY3d 941 [2008]). Rivera, J.P.,Chambers, Austin and Sgroi, JJ., concur.