KANE v. AUSUBEL (2007)

In an action to recover damages for medical malpractice, etc., the defendant Ian Frederick Ausubel appeals from an order of the Supreme Court, Queens County (Nelson, J.), dated October 17, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Ian Frederick Ausubel for summary judgment dismissing the complaint insofar as asserted against him is granted.

The plaintiff's decedent allegedly sustained fatal injuries when he fell from his bed in a nursing home.   The defendant Ian Frederick Ausubel (hereinafter the defendant), a physician at the nursing home, established his prima facie entitlement to summary judgment by adducing evidence that he had ordered the use of side rails on the decedent's bed in order to prevent the decedent from falling out.   In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact.   The expert affidavit proffered by the plaintiff, which relied upon facts contradicted by the record, was speculative and conclusory, and thus did not raise a triable issue of fact (see Romano v. Stanley, 90 N.Y.2d 444, 451-452, 661 N.Y.S.2d 589, 684 N.E.2d 19;  Rodriguez v. Montefiore Med. Ctr., 28 A.D.3d 357, 814 N.Y.S.2d 59;   Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 359, 669 N.Y.S.2d 631).

Accordingly, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him should have been granted.