GRAHAM GUERRIER v. Jamaica Hospital Medical Center, et al., respondents. (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice and wrongful death, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Tracy Catapano–Fox, J.), entered March 15, 2024, and (2) an order of the same court entered March 21, 2024.  The order entered March 15, 2024, granted the motion of the defendants Jamaica Hospital Medical Center and Katherine McKenzie for summary judgment dismissing the amended complaint insofar as asserted against them.  The order entered March 21, 2024, granted the motion of the defendant Marco Bertucci Zoccali for summary judgment dismissing the amended complaint insofar as asserted against him.

ORDERED that the orders are affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

On September 29, 2016, Paulette Guerrier (hereinafter the decedent) was struck by a car and transported to the defendant Jamaica Hospital Medical Center (hereinafter JHMC), where she was treated by the defendants Katherine McKenzie and Marco Bertucci Zoccali.  The next day, the decedent experienced sudden cardiac arrest and died due to a bilateral pulmonary thromboemboli.

In September 2018, the plaintiff, who was the administrator of the decedent's estate, commenced this action against, among others, JHMC, McKenzie, and Zoccali (hereinafter collectively the defendants), inter alia, to recover damages for medical malpractice and wrongful death.  In November 2023, JHMC and McKenzie moved for summary judgment dismissing the amended complaint insofar as asserted against them, and Zoccali thereafter moved for summary judgment dismissing the amended complaint insofar as asserted against him.  In an order entered March 15, 2024, the Supreme Court granted the motion of JHMC and McKenzie, and in an order entered March 21, 2024, the court granted Zoccali's motion.  The plaintiff appeals from both orders.

“ ‘Medical malpractice actions require proof that the defendant physician deviated or departed from the accepted community standards of practice, and that such deviation ․ was a proximate cause of the plaintiff's injuries’ ” (Montanari v. Lorber, 200 A.D.3d 676, 678, 157 N.Y.S.3d 102, quoting Dixon v. Chang, 163 A.D.3d 525, 526, 79 N.Y.S.3d 648).  “ ‘On a motion for summary judgment dismissing a cause of action alleging medical malpractice, the defendant bears the initial burden of establishing that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff's injuries’ ” (Connolly v. Sanders, 239 A.D.3d 594, 595, 235 N.Y.S.3d 659, quoting Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d 858, 859–860, 166 N.Y.S.3d 676;  see Gaston v. New York City Health & Hosps. Corp., 207 A.D.3d 705, 706, 170 N.Y.S.3d 886).  “ ‘If the defendant makes such a showing, the burden shifts to the plaintiff to raise a triable issue of fact as to those elements on which the defendant met its prima facie burden of proof’ ” (Connolly v. Sanders, 239 A.D.3d at 595, 235 N.Y.S.3d 659, quoting Stewart v. North Shore Univ. Hosp. at Syosset, 204 A.D.3d at 860, 166 N.Y.S.3d 676;  see Corujo v. Caputo, 224 A.D.3d 729, 730, 205 N.Y.S.3d 174).

Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint insofar as asserted against each of them by submitting the decedent's medical records and affirmations of experts, each of whom was board certified in surgery and surgical critical care, and had extensive experience in emergency medicine.  The defendants' experts each opined that the care and treatment the defendants rendered to the decedent did not deviate from the accepted standards of medical care and that such treatment did not proximately cause the decedent's death (see Hiltz v. DiLorenzo, 206 A.D.3d 631, 633, 169 N.Y.S.3d 130;  Pettway v. Vorobyeva, 202 A.D.3d 1116, 1117, 159 N.Y.S.3d 909).

In opposition, the plaintiff failed to raise a triable issue of fact.  “ ‘[A] medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field’ ” (Montanari v. Lorber, 200 A.D.3d at 678–679, 157 N.Y.S.3d 102, quoting DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503;  see M.C. v. Huntington Hosp., 175 A.D.3d 578, 580, 106 N.Y.S.3d 382).  “However, the witness must be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable” (Montanari v. Lorber, 200 A.D.3d at 679, 157 N.Y.S.3d 102 [internal quotation marks omitted];  see DiLorenzo v. Zaso, 148 A.D.3d at 1112–1113, 50 N.Y.S.3d 503).  Thus, “ ‘[w]here a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered’ ” (Corujo v. Caputo, 224 A.D.3d at 731, 205 N.Y.S.3d 174, quoting DeGiorgio v. Racanelli, 136 A.D.3d 734, 737, 25 N.Y.S.3d 282;  see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d 1170, 1172, 216 N.Y.S.3d 711).  “ ‘Where no such foundation is laid, the expert's opinion is of no probative value, and is therefore insufficient to meet a party's burden on a summary judgment motion’ ” (Corujo v. Caputo, 224 A.D.3d at 731, 205 N.Y.S.3d 174, quoting Laughtman v. Long Is. Jewish Val. Stream, 192 A.D.3d 677, 678, 143 N.Y.S.3d 97).

Here, the plaintiff's expert was board certified in family medicine and was a director of quality control for family medicine, but the plaintiff's expert failed to lay a foundation for her qualifications as an expert in emergency medicine, orthopedic surgery, trauma surgery, or critical care and, thus, failed to raise a triable issue of fact (see Daniele v. Pain Mgt. Ctr. of Long Is., 168 A.D.3d 672, 677, 91 N.Y.S.3d 496;  Galluccio v. Grossman, 161 A.D.3d 1049, 1052, 78 N.Y.S.3d 196).  In any event, the affirmation of the plaintiff's expert was conclusory, speculative, and unsupported by the evidence (see Quinones v. Winthrop Univ. Hosp., 230 A.D.3d at 1172, 216 N.Y.S.3d 711;  Corujo v. Caputo, 224 A.D.3d at 732, 205 N.Y.S.3d 174).

Accordingly, the Supreme Court properly granted the separate motions of the defendants for summary judgment dismissing the amended complaint insofar as asserted against each of them.

DILLON, J.P., WOOTEN, LANDICINO and GOLIA, JJ., concur.