SAWCZYN v. RED ROOF INNS INC (2005)

Plaintiffs commenced this action to recover damages for personal injuries sustained by Michael Sawczyn (plaintiff) and alleged that defendant's employees were negligent in failing to summon medical assistance for plaintiff after he suffered a stroke.   Supreme Court erred in denying defendant's motion for summary judgment dismissing the complaint.   Defendant established its entitlement to judgment as a matter of law and plaintiffs failed to raise an issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Defendant's medical expert averred that the effects of the stroke would not have been less severe had plaintiff received medical attention on the morning of September 3, 1997, instead of on September 4, 1997.   Plaintiffs' medical expert failed to raise a question of fact whether plaintiff would have been a candidate for tissue plasminogen activator therapy on September 3. It is undisputed that such therapy must be given within three hours of a stroke;  here, however, it was unknown whether the stroke occurred within the three hours before defendant's employees were first contacted concerning plaintiff.   Thus, we conclude that the affidavit of plaintiffs' expert was speculative and failed to establish a causal nexus between plaintiff's injuries and the alleged negligence (see Gage v. Dutkewych, 3 A.D.3d 629, 631, 771 N.Y.S.2d 202;  see also Kaplan v. Hamilton Med. Assoc., 262 A.D.2d 609, 610, 692 N.Y.S.2d 674).

Plaintiffs' medical expert also opined that the effects of the stroke were “worsened” by the delay in that plaintiff was hypertensive and dehydrated, sustained increased brain swelling, and was not promptly treated with an anticoagulant.   Those averments do not raise a triable issue of fact because they are speculative and conclusory.   Plaintiffs' expert failed to describe or quantify the alleged impact that the delay had on the effects of plaintiff's stroke or how such an impact might have been avoided, and thus failed to establish any causal nexus between the delay and plaintiff's post-stroke condition (see Gage, 3 A.D.3d at 631, 771 N.Y.S.2d 202;  Koeppel v. Park, 228 A.D.2d 288, 290, 644 N.Y.S.2d 210).   We therefore reverse the order and grant the motion for summary judgment dismissing the complaint.

It is hereby ORDERED that the order so appealed from be and the same hereby is reversed on the law without costs, the motion is granted and the complaint is dismissed.

I respectfully dissent.  “It is axiomatic that summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of a triable issue of fact ․ or where such issue is even arguable” (Tronlone v. Lac d'Amiante Du Quebec, 297 A.D.2d 528, 528-529, 747 N.Y.S.2d 79, affd. 99 N.Y.2d 647, 760 N.Y.S.2d 96, 790 N.E.2d 269).   The parties' experts provided sharply conflicting opinions whether defendant's delay in summoning medical care contributed to the injuries sustained by Michael Sawczyn (plaintiff).  “ ‘[C]onflicting expert opinions may not be resolved on a motion for summary judgment’ ” (Pittman v. Rickard, 295 A.D.2d 1003, 1004, 743 N.Y.S.2d 795), and the issue whether defendant's alleged negligence proximately caused plaintiff's injuries is properly left for the trier of fact (see generally Brown v. State of New York, 192 A.D.2d 936, 937-938, 596 N.Y.S.2d 882, lv. denied 82 N.Y.2d 654, 602 N.Y.S.2d 803, 622 N.E.2d 304).

MEMORANDUM: