CASIANO v. RIVERDALE SNF LLC (2024)

Order, Supreme Court, Bronx County (Joseph E. Capella, J.), entered July 7, 2023, which, insofar as appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the complaint, unanimously modified, on the law, to deny the motion with respect to the first, second and third causes of action, and otherwise affirmed, without costs.

The affirmation of plaintiff's expert was sufficient to raise a triable issue of fact as to defendant's liability and was not vague, conclusory, or speculative.  Plaintiff's expert addressed the specific fall risk assessments that he opined were improper in view of plaintiff's fall history and the inaccurate or missing information concerning the relevant factors that were used in the assessment.  He stated that plaintiff should have been found to be at high risk of falling throughout her residency at defendant's facility, and that due to the improper assessments he cited, sufficient interventions were not put in place to prevent falls, such as the use of a wheelchair or assistance in ambulating from two aides, which may have prevented her fall on October 14, 2019 that resulted in a broken hip.  Plaintiff's expert also opined that the failure to put in place proper fall prevention measures that he outlined proximately caused the accident.  Although defendant's expert disagreed and stated that the falls were unavoidable, conflicting expert affirmations raise issues of fact that cannot be resolved on a motion for summary judgment (see Diaz v. NYU Langone Med. Ctr., 192 A.D.3d 534, 536, 144 N.Y.S.3d 699 [1st Dept. 2021]).

The statements by plaintiff's expert concerning what interventions were necessary to prevent falls did not constitute a new theory of liability.  Plaintiff's bill of particulars put defendant on notice that plaintiff alleged departures from the standard of care by failing to implement an adequate fall prevention plan, provide adequate supervision and assistive devices to prevent accidents, and to implement proper interventions (see Valenti v. Camins, 95 A.D.3d 519, 522, 943 N.Y.S.2d 504 [1st Dept. 2012]).

We affirm so much of the order as dismissed the fourth cause of action, for gross negligence, as plaintiff abandoned her appeal with respect to the gross negligence claim by failing to make any argument addressing its dismissal in either of her appellate briefs, notwithstanding that the omission was pointed out in defendant's brief opposing the appeal (see Tribbs v. 326–338 E. 100th LLC, 215 A.D.3d 480, 481, 188 N.Y.S.3d 18 [1st Dept. 2023];  Gad v. Almod Diamonds Ltd., 147 A.D.3d 417, 418, 45 N.Y.S.3d 790 [1st Dept. 2017];  Carey & Assoc. LLC v. 521 Fifth Ave. Partners, 130 A.D.3d 469, 470, 13 N.Y.S.3d 387 [1st Dept. 2015]).