| Dmytryszyn v Herschman |
| 2012 NY Slip Op 06061 [98 AD3d 715] |
| August 29, 2012 |
| Appellate Division, Second Department |
| John Dmytryszyn, Individually and as Executor of ElizabethDmytryszyn, Respondent, v Zvi Herschman, M.D., et al., Appellants, et al.,Defendants. |
—[*1] VoutÉ, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Laura K. Silversteinof counsel), for appellant Cynthia Ligenza. Kreindler & Kreindler LLP, New York, N.Y. (Megan W. Benett and David C. Cook ofcounsel), for respondent.
In an action, inter alia, to recover damages for wrongful death, etc., the defendant ZviHerschman appeals, as limited by his brief, from so much of an order of the Supreme Court,Westchester County (Giacomo, J.), entered June 1, 2011, as denied his motion for summaryjudgment dismissing so much of the complaint as sought to recover damages for conscious painand suffering and loss of services, and to recover damages for pecuniary loss based upon allegedlost earnings insofar as asserted against him, and the defendant Cynthia Ligenza separatelyappeals from so much of the same order as denied her separate motion for the same relief insofaras it related to her.
Ordered that the order is affirmed, with one bill of costs.
The plaintiff commenced this action, inter alia, to recover damages for wrongful deathagainst, among others, the appellants, alleging that their negligence in performing ananesthesia-assisted rapid opiate detoxification procedure using the drug propofol (hereinafter theAROD procedure) resulted in the death of the plaintiff's wife.
The Supreme Court properly denied those branches of the appellants' respective motionswhich were for summary judgment dismissing so much of the complaint as sought to recoverdamages for conscious pain and suffering insofar as asserted against them. " '[W]hile a plaintiffbears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on amotion for summary judgment the defendant bears the initial burden of showing that thedecedent did not endure conscious pain and suffering' " (Haque v Daddazio, 84 AD3d 940, 941 [2011], quoting Gaida-Newman v Holtermann, 34AD3d 634, 635 [2006]; see generally Cummins v County of Onondaga, 84 NY2d322 [1994]; McDougald v Garber, 73 NY2d 246, 255 [1989]; Schild v Kingsley, 5 AD3d 103[2004]). The only evidence submitted by the appellants addressing this issue was an expertaffidavit concluding that "[c]onscious suffering was not feasible" during the AROD procedure asthe decedent was anesthetized and unconscious and thoroughly unaware of impending deathduring the entire [*2]procedure. However, the expert's opinionwas conclusory and speculative, and thus, was properly accorded no probative force (see Diazv New York Downtown Hosp., 99 NY2d 542, 544-545 [2002]; Hambsch v New YorkCity Tr. Auth., 63 NY2d 723, 725 [1984]). Inasmuch as the appellants failed to make a primafacie showing of entitlement to judgment as a matter of law as to damages for conscious pain andsuffering, it is unnecessary to review the sufficiency of the plaintiff's opposition papers on thisissue (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Faicco v Golub, 91 AD3d 817,818 [2012]; Wall v Flushing Hosp. Med.Ctr., 78 AD3d 1043, 1045 [2010]; LaVecchia v Bilello, 76 AD3d 548, 548 [2010]).
The Supreme Court also properly denied those branches of the appellants' respective motionswhich were for summary judgment dismissing so much of the complaint as was to recover forpecuniary loss based upon alleged lost earnings. "A claim for lost earnings must be establishedwith reasonable certainty" (Morgan vRosselli, 23 AD3d 356, 357 [2005]; see Gomez v City of New York, 260 AD2d598, 599 [1999]; Poturniak v Rupcic, 232 AD2d 541, 542 [1996]; Bacigalupo vHealthshield, Inc., 231 AD2d 538, 539 [1996]). Here, the appellants established their primafacie entitlement to judgment as a matter of law dismissing so much of the wrongful death causeof action as was to recover for pecuniary loss based upon alleged lost earnings by submitting theplaintiff's decedent's medical records establishing that she had been totally disabled from heremployment as a registered nurse since 1997, years before the alleged malpractice occurred in2004 (see Poturniak v Rupcic, 232 AD2d at 542). However, in opposition, the plaintiffraised triable issues of fact, inter alia, as to whether the decedent would have returned to work asa registered nurse in the future (see Horan v Dormitory Auth., 43 AD2d 65, 69-70[1973]).
The appellants' remaining contentions are without merit. Florio, J.P., Balkin, Hall and Miller,JJ., concur.