NIMS III v. RILEY FNP (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this medical malpractice action seeking damages for injuries that plaintiff James Nims, III, allegedly sustained as a result of defendants’ negligence in, inter alia, failing to timely diagnose a deep vein thrombosis and to provide appropriate treatment for that condition, defendants Susan M. Walker, FNP-C (Walker) and Jefferson Anesthesiologist Services, P.C. (Jefferson); defendant James T. Riley, M.D.; and defendant Samaritan Medical Center appeal from an order denying their respective motions for summary judgment dismissing the complaint against them. We affirm.

In moving for summary judgment in a medical malpractice action, a defendant has “the initial burden of establishing either that there was no deviation or departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries” (Occhino v. Fan, 151 A.D.3d 1870, 1871, 57 N.Y.S.3d 325 [4th Dept. 2017] [internal quotation marks omitted]). We conclude that defendants met their initial burden on their respective motions with respect to the alleged deviations from the accepted standard of medical care, and the burden thus “ ‘shift[ed] to ․ plaintiff[s] to demonstrate the existence of a triable issue of fact ․ as to the elements on which ․ defendant[s] met the prima facie burden’ ” (Bubar v. Brodman, 177 A.D.3d 1358, 1359, 111 N.Y.S.3d 483 [4th Dept. 2019]). In opposition, however, plaintiffs submitted the affirmation of a pain management expert and the affirmation of an expert vascular surgeon, both of which “squarely oppose[d]” the affirmations of defendants’ experts, resulting in “a classic battle of the experts that is properly left to a jury for resolution” (Nowelle B. v. Hamilton Med., Inc., 177 A.D.3d 1256, 1258, 110 N.Y.S.3d 475 [4th Dept. 2019] [internal quotation marks omitted]; see Thomas v. Eckhert, 229 A.D.3d 1237, 1239, 215 N.Y.S.3d 238 [4th Dept. 2024]).

We have considered the remaining contentions of Walker and Jefferson and conclude that they lack merit.