| Shapiro v Gurwin Jewish Geriatric Nursing & RehabilitationCtr. |
| 2011 NY Slip Op 04655 [84 AD3d 1348] |
| May 31, 2011 |
| Appellate Division, Second Department |
| Barbara Shapiro, Appellant, v Gurwin Jewish GeriatricNursing & Rehabilitation Center, Respondent. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, White Plains, N.Y. (Lori R. Semlies ofcounsel), for respondent.
In an action to recover damages for negligence, wrongful death, and violation of PublicHealth Law § 2801-d, the plaintiff appeals from an order of the Supreme Court, NassauCounty (Adams, J.), entered April 2, 2010, which granted the defendant's motion for summaryjudgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
On November 2, 2007, the plaintiff's decedent, Beatrice G. Charney, died at the defendant'sfacility. The plaintiff thereafter commenced this action to recover damages for negligence,wrongful death, and violation of Public Health Law § 2801-d. After discovery wascompleted, the defendant moved for summary judgment dismissing the complaint. The SupremeCourt granted the motion, and the plaintiff appeals.
The defendant established its prima facie entitlement to judgment as a matter of law bysubmitting evidence that Charney had died through no action or negligence of its employees(cf. Stukas v Streiter, 83 AD3d 18 [2011]; Brady v Westchester County HealthcareCorp., 78 AD3d 1097, 1098 [2010]). The discrepancies between the accounts of variousemployees as to Charney's treatment were not material. Moreover, the alleged inaccuracies in themedical records maintained by the defendant as to the timing of certain events were, read incontext, either not inaccuracies at all or immaterial and could not have resulted in injury toCharney (see Public Health Law § 2801-d; cf. Sullivan v Our Lady ofConsolation Geriatric Care Ctr., 60 AD3d 663, 665 [2009]). In opposition to the defendant'sprima facie showing, the plaintiff failed to raise a triable issue of fact (see Zuckerman v Cityof New York, 49 NY2d 557, 562 [1980]). The expert affidavit submitted by the plaintiff,which relied upon facts contradicted or unsupported by the record, was speculative andconclusory as to the negligence and wrongful death causes of action and did not raise a triableissue of material fact as to any of the causes of action alleged in the complaint (see Romano vStanley, 90 NY2d 444, 451-452 [1997]; Kane v Ausubel, 44 AD3d 717, 717-718[2007]; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [2006]). Accordingly, theSupreme Court properly granted the defendant's motion for summary judgment dismissing thecomplaint. Rivera, J.P., Balkin, Lott and Austin, JJ., concur.