INDIVIDUALLY AND CATHERINE HARRIS AS ADMINISTRATOR OF THE ESTATE OF STEVEN HARRIS DECEASED v. IBRAHIM ALMASRY NATHAN SMITH MATTHEW HENRIQUES AND MISHELLE CENTENO GAVICA (2026)

Upon the following papers read on defendants Sadia Abbasi, M.D. and Ibrahim Almasry, M.D.'s motion for summary judgment pursuant to CPLR 3212, to dismiss plaintiffs' complaint as asserted against them: NYSCEF documents 1 thru 103; it is hereby

ORDERED defendants Sadia Abbasi, M.D. and Ibrahim Almasry, M.D.'s motion for summary judgment pursuant to CPLR 3212 to dismiss plaintiffs' complaint as asserted against them is granted as to the second cause of action and is otherwise denied.

Plaintiff, Catherine Harris, the wife of decedent Steven Harris, commenced this action on May 12, 2023, by filing a summons and complaint alleging medical malpractice, lack of informed consent, wrongful death pecuniary loss to decedent's distributees, and loss of services. Moving defendants answered on June 26, 2023. On January 12, 2026, the action against Dr. Nathan Smith, Dr. Matthew Henriques, and Dr. Mishelle Centeno Gavica, D.O., was discontinued by stipulation. Plaintiffs allege in their bill of particulars that while Steven Harris was a patient at Stony Brook University Hospital from September 10, 2021, through September 13, 2021, the moving defendants failed to prevent decedent's cardiac arrest by failing to timely and properly perform an implantation of an Implantable Loop Recorder (ILR); failed to determine the etiology of decedent's syncope (loss of consciousness or fainting); failed to properly interpret EKGs; failed to timely and properly act upon the results of a repeat EKG and the echocardiogram; failed to perform electrophysiology studies, including performing and placing a permanent pacemaker, and failed to act upon the findings of his EKG of an accelerated idioventricular rhythm. Plaintiffs allege, as a result of negligent treatment during the Stony Brook Hospital admission, that Steven Harris suffered a fatal arrhythmia on September 22, 2021, while at home, and had appropriate management been provided during the hospitalization, Steven Harris would not have died. Discovery is complete, and a note of issue has been filed. Defendants Dr. Abbasi and Dr. Almasry now move for summary judgment pursuant to CPLR 3212 and dismissal of plaintiff's complaint. In support of the motion, they submit, among other things, an affirmation of counsel, the pleadings, decedent's medical records from both Stony Brook Hospital and from Dr. Paul Harnick, decedent's cardiologist, the expert affirmation of Elias G. Sakalis, M.D. (internal medicine), the expert affirmation of Stanley J. Schneller, M.D. (cardiologist), the deposition transcripts of Catherine Harris, Dr. Sadia Abbasi, Dr. Ibrahim Almasry, and decedent's daughter, Eleanor Harris.

On September 10, 2021, Steven Harris presented to the emergency department at Stony Brook University Hospital after passing out while driving on the Long Island Expressway, causing a motor vehicle accident. He reported that he lost consciousness before the accident and that earlier in the week he had an episode of syncope. A neurological exam found that he was alert and oriented to person, place, time, and situation with no focal neurological deficits with Cranial Nerves II-XII. A cardiovascular exam revealed a regular rate and rhythm with no murmur and normal peripheral perfusion. An EKG found a sinus rhythm at 90 beats per minute with left axis deviation, right bundle branch block, and premature ventricular contractions. Mr. Harris was admitted for further syncope workup to the hospitalist service of Dr. Sadia Abbasi on the telemetry floor.

On September 10, 2021, a CT of the head was also performed with no acute intracranial findings noted. Cardiac troponin levels were within normal limits.

On September 11, 2021, resident Dr. Nathan Smith, following a physical examination, reviewed the laboratory studies and imaging, including chest and knee X-rays, CT of the head and spine, and EKG, the differential diagnosis was vasovagal syncope versus cardiogenic syncope versus seizure. The plan, countersigned by attending Dr. Abbasi, was neurological consult, follow-up echocardiogram, trend troponins, consider brain MRI, a video EEG, and an electrophysiology consult. Dr. Smith also intended to speak with Dr. Harnick, decedent's primary cardiologist, however, decedent's daughter reported that her father did not have heart disease, but premature ventricular contractions which was determined to be nothing significant. Eleanor Harris, decedent's daughter, is a nurse administrator at NYU Langone, with ten (10) years' experience in cardiac telemetry, testified that she "did not recall" any conversation with her father's doctors at Stony Brook, but admitted that she spoke with Dr. Harnick, her father's cardiologist at Winthrop about transferring her father to Winthrop Hospital. Dr. Harnick advised Eleanor Harris to let Stony Brook do the workup, as he was already there. Dr. Abbasi's notes of September 11, 2021, at page 49, state "Plan of care d/w daughter at length. She works at Winthrop and prefers patient be transported there for continuity." Dr. Abbasi testified that after learning this information, reviewing the EKG results and the ongoing monitoring that there was no need to speak with Dr. Harnick.

On September 11, 2021, the neurology consult reported a history of three (3) syncopal episodes in the past three weeks. The attending neurologist felt it was unclear whether the episodes were cardiogenic or neurogenic but agreed with continuous EEG and MRI of brain for further investigation.

Dr. Abbasi requested an electrophysiology/cardiology consult and electrophysiologist Dr. Almasry saw Mr. Harris on September 11, 2021, in the morning supervising cardiology fellow Dr. Henriques.

Dr. Almasry's examination revealed normal cardiac findings, with minor abnormal labs of elevated creatinine with slightly low hematocrit. Dr. Almasry testified that the creatinine was likely a result of renal insufficiency based upon a past history of renal cancer and a nephrectomy. Low hematocrit was due to a history of hemolytic anemia. Reviewing the September 10 EKG Dr. Almasry testified that he believed there was no right bundle block, but rather a benign brief accelerated idioventricular rhythm, or a normal finding with benign findings of brief accelerated idioventricular rhythm. His differential diagnosis was vasovagal syncope or arrhythmia. His plan was repeat EKG and echocardiogram. If both were normal, he would recommend an implantable loop recorder for detection of cardiac arrhythmias in the setting of multiple syncope episodes.

Dr. Abbasi noted that a video EEG was performed with no evidence of seizures seen on the video and the plan was to order a brain MRI and continue telemetry monitoring.

A repeat EKG was performed on September 11th and an echocardiogram on September 13th. Dr. Almasry testified that both showed normal cardiac function. An accelerated idioventricular rhythm was not present on the September 11th repeat EKG and a normal rhythm was seen on all twelve (12) leads.

Dr. Almasry testified he recommended a repeat echocardiogram and implantation of a loop recorder, but Mr. Harris declined and refused the Loop Recorder expressing a preference for his own cardiologist. Progress notes of September 12, 2021, at page 51, specifically state, "Patient prefers to follow up with his cardiologist at Winthrop for further workup."

On September 12, 2021, Mr. Harris was seen by Dr. Abbasi and the echocardiogram and MRI of the brain were pending.

On September 13, 2021, the echocardiogram was normal, and the repeat echocardiogram report was normal with no abnormalities found to explain the syncope, no premature ventricular contractions nor a right bundle branch block. Dr. Abbasi testified she discussed an implantable loop recorder with Mr. Harris, and he refused. He agreed to follow up with Dr. Harnick within 1 to 2 days. Dr. Abbasi testified that Mr. Harris had a full understanding of his discharge instructions including follow-up with Dr. Harnick.

Dr. Almasry also testified that he spoke with Mr. Harris and strongly recommended the implantable loop recorder, but Mr. Harris would not agree to any procedures at Stony Brook University Hospital.

Mr. Harris was discharged on September 13, 2021. His daughter, Eleanor, a nurse administrator at NYU Langone/Winthrop and a former RN made an appointment with Dr. Harnick "a week after discharge." Plaintiff Catherine Harris testified that decedent was discharged on a Friday and Eleanor Harris made an appointment to see Dr. Harnick on the following Tuesday (page 72-74), after plaintiff's counsel intervened, she testified she did not recall the exact dates.

Mr. Harris passed away on September 22, 2021 and did not go for any testing from his discharge on September 13, 2021, up until his death on September 22, 2021. No autopsy was performed.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (see Winegrad v New York Univ. Med. Ctr., supra). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.). Once such proof has been offered, the burden then shifts to the opposing party who must proffer evidence in admissible form and must show facts sufficient to require a trial of any issue of fact to defeat the motion for summary judgment (see CPLR 3212 [b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, evidence must be viewed in the light most favorable to the nonmoving party (see Moonilal v Roman Catholic Church of St. Mary Gate of Heaven, 225 AD3d 592, 206 NYS3d 686 [2d Dept 2024]; Morejon v New York City Tr. Auth., 216 AD3d 134, 191 NYS3d 427 [2d Dept 2023]).

To establish liability for medical malpractice, a plaintiff must prove that the defendant deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff's injuries (see Choida v Schirripa, 188 AD3d 978, 135 NYS3d 481 [2d Dept 2020]; Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819, 982 NYS2d 361 [2d Dept 2014]; Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]). To establish entitlement to summary judgment in a medical malpractice action, "a defendant must make a prima facie showing either that there was no departure from good and accepted medical practice, or that the plaintiff was not injured by any such departure" (Alvarellos v Tassinari, 222 AD3d 815, 818, 201 NYS3d 489 [2d Dept 2023], citing Bum Yong Kim v North Shore Long Is. Jewish Health Sys., Inc., 101 AD3d 653, 655, 162 NYS3d 132 [2d Dept 2022]; see also Getselevich v Ornstein, 219 AD3d 1493, 196 NYS3d 515 [2d Dept 2023]; Mitchell v Grace Plaza of Great Neck, Inc., 115 AD3d 819, 982 NYS2d 361; Williams v Bayley Seton Hosp., 112 AD3d 917, 918, 977 NYS2d 395, 397 [2d Dept 2013]). Where the defendant has satisfied this burden, the burden then shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing (see Getselevich v Ornstein, 219 AD3d 1493, 196 NYS3d 515; Choida v Schirripa, 188 AD3d 978, 135 NYS3d 481; Williams v Bayley Seton Hosp., 112 AD3d 917, 977 NYS2d 395; Stukas v Streiter, 83 AD3d 18, 918 NYS2d 176). Summary judgment is inappropriate in a medical malpractice action where the parties present conflicting opinions by medical experts (see Getselevich v Ornstein, 219 AD3d 1493, 196 NYS3d 515; Choida v Schirripa, 188 AD3d 978, 135 NYS3d 481; Lowe v Japal, 170 AD3d 701, 95 NYS3d 363 [2d Dept. 2018]). However, general allegations of medical malpractice, which are conclusory, speculative and unsupported by competent evidence, are insufficient to defeat a motion for summary judgment (see Alvarellos v Tassinari, 222 AD3d 815, 201 NYS3d 489; Getselevich v Ornstein, 219 AD3d 1493, 196 NYS3d 515; Choida v Schirripa, 188 AD3d 978, 135 NYS3d 481; Lowe v Japal, 170 AD3d 701, 95 NYS3d 363).

Here, defendants have established their prima facie entitlement to dismissal of plaintiffs' complaint based upon the expert opinions of Dr. Elias G. Sakalis and Dr. Stanley J. Schneller. Dr. Sakalis, a board-certified physician in internal medicine, opines that within a reasonable degree of medical certainty the claims against Dr. Sadia Abbasi are without merit and that the care rendered by Dr. Abbasi conformed in all respects to good and accepted medical practice and did not proximately cause plaintiffs' claimed injuries. Dr. Sakalis specifically opines, within a reasonable degree of medical certainty, that Dr. Abbasi appropriately relied upon Dr. Almasry, the EP/cardiologist's recommendation, for the implantation of an Implantable Loop Recorder (ILR) and that Dr. Abbasi's recommendations were within the standards of internal medicine care. Despite contemporaneous documentation in the medical record and the testimony of Dr. Abbasi, decedent's daughter, a telemetry nurse for ten years, denied in her deposition that she was told that follow-up with Dr. Harnick was necessary. Dr. Sakalis opines that despite denials by decedent's wife and daughter, Mr. Harris himself was fully aware based upon his discharge paperwork that follow-up with Dr. Harnick was essential. Dr. Sakalis opines, as decedent's daughter did not visit her father in the hospital, she cannot refute the memorialized conversations Dr. Abbasi and Dr. Almasry had with Mr. Harris with regard to follow-up. Dr. Sakalis further opines that proximate cause does not exist here on indisputable facts and "[e]ven if an Implantable Loop Recorder was placed at Stony Brook University Hospital, Mr. Harris would still have passed away on September 22, 2021."

Dr. Stanley J. Schneller, board-certified in internal medicine and cardiovascular disease and a professor of cardiology at Columbia University Medical Center also opines within a reasonable degree of cardiology certainty that the claims against Dr. Abbasi and Dr. Almasry are without merit and the care rendered was at all times within the good and accepted standards of both internal medicine and cardiology practice, as it existed in 2021. Dr. Schneller further opines that there were no deviations or departures from the standard of care in cardiology practice by Dr. Almasry and that internal medicine physician Dr. Abbasi appropriately relied on Dr. Almasry's recommendations. He opines that collectively within the standards of care both Doctors worked up Mr. Harris to determine the etiology of his syncope. Dr. Schneller also opines that neither Dr. Abbasi nor Dr. Almasry could force Mr. Harris against his will to agree with their recommendations to have an Implantable Loop Recorder placed at Stony Brook University Hospital before discharge. Dr. Schneller is also of the opinion that the actions or omissions of the doctors was not the proximate cause of Mr. Harris's injuries, including his death.

In opposition plaintiffs submit an affirmation of counsel, the expert affirmation of a board-certified cardiac electrophysiologist, and the expert affirmation of a board-certified internal medicine physician. Plaintiffs' primary position is that defendants may not offer evidence of plaintiffs' alleged declining of the implantation of the loop recorder as a violation of CPLR 4519, the Dead Man's Statute. Plaintiffs maintain this position, despite a progress note of September 13, 2021, that "patient will follow up with cardiologist at Winthrop for loop recorder" and that the cardiologist appointment was "to be within 1-2 days." Plaintiffs maintain that these notes do not say that an implantable loop recorder was recommended prior to decedent's discharge.

Pursuant to CPLR 4519, "upon the trial of an action ., a party or person interested in the event .shall not be examined as a witness in his or her own behalf or interest ..against the executor, administrator or survivor of a deceased person or the committee of a person with a mental illness .concerning a personal transaction or communication between the witness and the deceased person or person with a mental illness, except where the executor, administrator, survivor, committee or person so deriving title or interest is examined in his or her own behalf, or the testimony of the person with a mental illness or deceased person is given in evidence, concerning the same transaction or communication." Generally, evidence that would be inadmissible at trial under the Dead Man's Statute may not be relied upon to establish a prima facie entitlement to judgment as a matter of law (Weber v Sharma, 232 AD3d 930, 222 NYS3d 602 [2d Dept 2024]). Defendants here, offer the testimony elicited by plaintiffs' counsel during examinations before trial, which if asked at trial would involve waiver of the statute (Matter of Van Volkenburgh, 254 NY 139, 172 NE 269 [1930]). Waiver also occurs by examining the defendants at trial with regard to the communication (Nay v Curley, 68 Sickels 575,113 NY 575 [1889]). Here, the Court does not consider for purposes of the motion defendants' testimony with regard to the communication, however defendants established their prima facie entitlement to summary judgment based upon the progress notes of September 12, 2021, at page 51, which states "Patient prefers follow-up with his cardiologist at Winthrop for further workup" and at page 53, "Patient will follow-up with cardiologist at Winthrop for loop recorder." The discharge note of September 13, 2021, at page 334 provides, "Patient prefers to follow up with cardiologist at Winthrop for further workup." "Will need to see cardiologist within 2 days." These medical records are admissible as pertinent to the diagnosis and treatment of decedent and establish defendants' prima facie entitlement to summary judgment (Weber v Sharma, 232 AD3d 930, 222 NYS3d 602 [2d Dept 2024]). At this stage, the Court takes no position as to whether at trial decedent's statement to his physicians, "No thank you", with regard to the implantation of the loop recorder, is admissible.

In any event, plaintiffs' expert electrophysiologist opines that Dr. Almasry deviated or departed from the acceptable standards of care in his failure to order an EP study to determine a cause for the patient's syncope. The expert further opines that an EKG and echocardiogram, on their own, cannot rule out a distal conduction disorder and that, in the event that an EP study is done, the placement of cardiac monitor, such as an implantable loop recorder warrants strong consideration. Plaintiffs' expert also opines that Dr. Abbasi deviated from the acceptable standards of care in the discharge of decedent without an EP workup or the placement of a loop recorder, an opinion shared by plaintiff's other expert. Plaintiffs' experts opine that there is no documentation that the patient refused the placement of a loop recorder while he was admitted to the hospital. Plaintiffs' internal medicine expert also opines that defendants deviated from the standard of care by failing to coordinate with Dr. Harnick, decedent's outpatient cardiologist. The experts also opine that failing to document conversations with the firm refusal of decedent not to have the implantable loop recorder, despite their deposition testimony, was a deviation from the standard of care.

Plaintiffs' expert physicians have raised triable issues of fact as to the first cause of action.

Plaintiffs' second cause of action alleges lack of informed consent. Defendants have established that no treatment or procedures were performed by Dr. Abbasi or Dr. Almasry that Mr. Harris did not consent to. Accordingly, the second cause of action is dismissed.

Plaintiffs' third cause of action alleges wrongful death/pecuniary loss by Steven Harris's wife and three (3) children. Both defendants' experts and plaintiffs' experts disagree as to whether decedent would have died had the loop recorder been implanted. Both attorneys for plaintiff and defendant argue that the experts are engaged in speculation (see Broskett v St. Catherine of Siena Nursing & Rehabilitation Care Ctr., (2026 NY Slip Op 05004, decided August 19, 2026). The issue therefore is one of fact for a jury to decide. Defendants' motion is denied as to the third cause of action.

Plaintiffs' fourth cause of action alleges loss of services on behalf of Catherine Harris. As this is a derivative cause of action, given the differing expert opinions, defendants' motion is denied as to the fourth cause of action.

E N T E R :

Hon. Paul M. Hensley

Justice of the Supreme Court

Date: August 25, 2026

Riverhead, New York

Paul M. Hensley, J.