CAREY v. LLC (2018)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered October 3, 2016, which denied the motion of defendant St. Barnabas Hospital for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

Defendant hospital failed to make a prima facie showing of entitlement to summary judgment.  In reaching the conclusion that the hospital staff took appropriate measures to prevent pressure sores, defendant's expert asserted that decedent's right heel ulcer was first observed on March 17, 2009, after which the hospital took appropriate measures.  However, hospital records show that a nurse first observed the ulceration on March 4, 2009, but that no action was taken until March 17th (see Mezzone v. Goetz, 145 A.D.3d 573, 43 N.Y.S.3d 331 [1st Dept. 2016], lv dismissed 29 N.Y.3d 1074, 57 N.Y.S.3d 461, 79 N.E.3d 1124 [2017] ).

In any event, plaintiff's expert raised questions of fact barring summary resolution of plaintiff's claims against defendant hospital (see Cregan v. Sachs, 65 A.D.3d 101, 108–109, 879 N.Y.S.2d 440 [1st Dept. 2009] ).  Decedent's records do not confirm that protocols were followed with regard to repositioning to prevent ulcers, and nothing in the record indicates that decedent presented with ulcers until nearly two weeks after her admission (compare Craig v. St. Barnabas Nursing Home, 129 A.D.3d 643, 12 N.Y.S.3d 86 [1st Dept. 2015] ).