PIETROFORTE BY BREW v. [And a Third-Party Action] (2023)

Order, Supreme Court, New York County (Erika Edwards, J.), entered on or about May 27, 2022, which, to the extent appealed from as limited by the briefs, granted defendants Marie A. Lippman, M.D.'s, Centerlight Healthcare, Inc. and Center for Nursing & Rehabilitation, Inc.'s (Centerlight/CNR), and Institute for Community Living, Inc. and Milestone Residence's (ICL/Milestone) motions for summary judgment dismissing all claims as against them, and granted defendants Belle Harbor Home of the Sages, Inc. and Belle Harbor Manor's (Belle Harbor) motion for summary judgment to the extent of dismissing all claims as against them except for the part of the negligence claim arising from their alleged negligent supervision and care of plaintiff between February 14, 2013 and February 18, 2013, unanimously affirmed, without costs.

The court correctly dismissed plaintiff's medical malpractice cause of action because defendants established prima facie their entitlement to summary judgment, and the report of plaintiff's expert, which, predated motion practice, was conclusory and did not address the points made by defendants' experts (see Homan v. David Seinfeld, M.D., PLLC, 164 A.D.3d 1147, 1148, 82 N.Y.S.3d 413 [1st Dept. 2018];  Abalola v. Flower Hosp., 44 A.D.3d 522, 522, 843 N.Y.S.2d 615 [1st Dept. 2007]).  In addition, plaintiff's expert's report consisted of mere general allegations of medical malpractice and did not distinguish between the multiple defendants (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Coronel v. New York City Health & Hosps. Corp., 47 A.D.3d 456, 457, 848 N.Y.S.2d 876 [1st Dept. 2008]).  Further, as to defendant Centerlight/CNR, their purported failure to ensure that plaintiff took her prescribed medication cannot be the proximate cause of her fall from a window months later, where that medication protocol was changed after she left their facility.

The claims sounding in negligence against Dr. Lippman, Centerlight/CNR, and ICL/Milestone for their alleged failure to prevent plaintiff's fall necessarily fail, as plaintiff was not in their custody at the time of the incident (see Estate of Benitez v. City of New York, 193 A.D.3d 42, 47, 141 N.Y.S.3d 51 [1st Dept.], lv denied 37 N.Y.3d 906, 2021 WL 4097466 [2021]).  With regard to Belle Harbor, however, the record establishes a lack of proximate causation between its failure to administer the usual prescribed medication during plaintiff's temporary relocation to other facilities and plaintiff's fall after her return to its facility on February 14, 2013.  However, the court correctly found that issues of fact exist as to, among other things, whether, after plaintiff's return, Belle Harbor knew or should have known that plaintiff was decompensating from a lack of compliance with her medication plan such that it should have taken further measures to monitor her behavior, and whether such alleged failures were a proximate cause of her injuries.