MYERS v. St. Barnabas Hospital, Defendant–Appellant. (2020)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered September 24, 2018, which denied the motion of defendant St. Barnabas Hospital for summary judgment dismissing the complaint as against it, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

St. Barnabas made a prima facie showing of entitlement to judgment as a matter of law.  St. Barnabas submitted an affirmation from a medical expert establishing that the treatment provided to plaintiff's decedent, who had a sacral ulcer, comported with good and accepted practice, and that the failure of the ulcer to heal was the result of decedent's many comorbidities, rather than any failure of care on the part of St. Barnabas (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 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, 848 N.Y.S.2d 876 [1st Dept. 2008] ).

In opposition, plaintiff failed to raise a triable issue of fact.  The affirmation from her expert set forth only general conclusions, misstatements of evidence and unsupported assertions, which were insufficient to demonstrate that St. Barnabas failed to comport with accepted medical practice, or that any such failure was a proximate cause of decedent's injuries (see Ramirez v. Columbia–Presbyterian Med. Ctr., 16 A.D.3d 238, 239, 790 N.Y.S.2d 606 [1st Dept. 2005] ).  Furthermore, plaintiff's expert failed to address decedent's preexisting conditions or the assertion of defendant's expert that those conditions complicated decedent's treatment.  Nor did plaintiff's expert address the fact that the ulcer continued to fail to heal, despite admission into an in-patient nursing care facility (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, 843 N.Y.S.2d 615 [1st Dept. 2007] ).