SIBRIZZI v. STRICKLAND (2026)

DECISION & ORDER

In an action to recover damages for medical malpractice, etc., the plaintiff appeals from (1) an order of the Supreme Court, Westchester County (Nancy Quinn Koba, J.), dated April 25, 2025, and (2) a judgment of the same court dated May 30, 2025.  The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for leave to renew her opposition to the motion of the defendant New York Presbyterian Hudson Valley Center to dismiss the complaint insofar as asserted against it, which had been granted in an order of the same court dated February 10, 2025.  The judgment is in favor of the defendant New York Presbyterian Hudson Valley Center and against the plaintiff dismissing the complaint insofar as asserted against that defendant.

ORDERED that the appeal from the order dated April 25, 2025, is dismissed;  and it is further,

ORDERED that the judgment is affirmed;  and it is further,

ORDERED that one bill of costs is awarded to the defendant New York Presbyterian Hudson Valley Center;  and it is further,

ORDERED that on the Court's own motion, the parties are directed to show cause why an order should or should not be made and entered imposing sanctions and/or costs, if any, upon the plaintiff's counsel, pursuant to 22 NYCRR 130–1.1, as this Court may deem appropriate, by uploading an affirmation or affidavit on this issue to NYSCEF, on or before November 25, 2026.

The appeal from the order dated April 25, 2025, must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248).  The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501[a][1];  Matter of Aho, 39 NY2d at 248).

In June 2020, the plaintiff, individually and as administratrix of the decedent's estate, commenced this action against, among others, the defendant New York Presbyterian Hudson Valley Center (hereinafter the defendant), inter alia, to recover damages for medical malpractice.  The plaintiff alleged, among other things, that the defendant failed to properly diagnose and treat the decedent's conditions, failed to timely and properly intubate the decedent, and failed to order tests and consultations, and that as a result of this negligence, the decedent suffered respiratory failure and death.

In July 2024, the defendant moved for summary judgment dismissing the complaint insofar as asserted against it.  In opposition, the plaintiff submitted a redacted expert affirmation that did not contain the language required by CPLR 2106.  In an order dated February 10, 2025, the Supreme Court granted the defendant's motion.  The court noted that the plaintiff's expert affirmation was redacted, that an unredacted affirmation was not submitted to the court for in camera review, and that the affirmation failed to contain the language required by CPLR 2106.

Thereafter, the plaintiff moved, inter alia, for leave to renew her opposition to the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.  In support of her motion, the plaintiff submitted, among other things, an unredacted expert affirmation that contained the language required by CPLR 2106.  In an affirmation, the plaintiff's attorney explained that his prior omissions were due to an inadvertent mistake.  The defendant opposed the motion.  In an order dated April 25, 2025, the Supreme Court, inter alia, denied that branch of the plaintiff's motion.  Thereafter, a judgment was entered in favor of the defendant and against the plaintiff dismissing the complaint insofar as asserted against the defendant.  The plaintiff appeals.

Under CPLR 2221(e)(2) and (3), a motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” and “shall contain reasonable justification for the failure to present such facts on the prior motion.”  “CPLR 2221(e) has not been construed so narrowly as to disqualify, as new facts not offered on the prior motion, facts contained in a document originally rejected for consideration because the document was not in admissible form” (Defina v Daniel, 140 AD3d 825, 826 [internal quotation marks omitted];  see Hackney v Monge, 103 AD3d 844, 845).  Here, the plaintiff's expert affirmation that was submitted in support of the plaintiff's motion, among other things, for leave to renew contained the expert's name and signature and complied with CPLR 2106, which constituted new facts.  The plaintiff's inadvertent failure to submit the expert affirmation in admissible form in connection with the defendant's prior motion for summary judgment was tantamount to law office failure, which, under the circumstances of this case, constituted a reasonable justification (see Hackney v Monge, 103 AD3d at 845).

Nevertheless, the plaintiff's expert affirmation would not change the prior determination.  The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) that such departure was a proximate cause of injury (see Rico v New York Methodist Hosp., 242 AD3d 787, 788;  Kunwar v Northwell Health, 229 AD3d 528, 532).  In moving for summary judgment dismissing a cause of action to recover damages for medical malpractice, a defendant must establish, prima facie, that there was no departure or deviation from the accepted standard of care or that such departure or deviation was not a proximate cause of any injury to the plaintiff (see Rico v New York Methodist Hosp., 242 AD3d at 788;  Williams v Levine, 238 AD3d 960, 961).

Once a defendant has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact as to the elements on which the defendant met the prima facie burden (see Piazza v NYU Hosps.  Ctr., 208 AD3d 525, 526;  Donnelly v Parikh, 150 AD3d 820, 822).  “General and conclusory allegations of medical malpractice, however, unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat a defendant provider's summary judgment motion” (Rico v New York Methodist Hosp., 242 AD3d at 788;  see Paxton v Sosnowski, 238 AD3d 779, 782).  “In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” (Rico v New York Methodist Hosp., 242 AD3d at 788 [internal quotation marks omitted];  see DePasquale v Staten Is. Univ. Hosp., 244 AD3d 1063, 1064).

Moreover, where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Rico v New York Methodist Hosp., 242 AD3d at 789;  Pinnock v Mercy Med. Ctr., 180 AD3d 1088, 1090–1091).  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 (see Pettway v Vorobyeva, 202 AD3d 1116, 1117).

Here, the defendant established its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it by submitting three expert affirmations, including one from an expert who was board certified in internal medicine, pulmonary disease, and critical care medicine, and who routinely treated patients in emergency departments as part of his practice.  The experts opined, based on their review of the decedent's medical records, transcripts of the deposition testimony, and the pleadings, that the defendant did not depart from accepted medical practice and did not cause or contribute to the decedent's injuries (see Rico v New York Methodist Hosp., 242 AD3d at 789;  Corujo v Caputo, 224 AD3d 729, 732).

In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's expert affirmation of a board-certified internist with a subspecialty in cardiology lacked probative value, as it failed to specify that the expert had any specific training or expertise in pulmonology, infectious disease, critical care medicine, or emergency medicine, or how he became familiar with the applicable standards of care rendered by the defendant regarding assessing the decedent for sepsis and timely intubating him (see Rico v New York Methodist Hosp., 242 AD3d at 789;  Corujo v Caputo, 224 AD3d at 732).  The plaintiff's expert affirmation was also conclusory and speculative, failed to address specific assertions of the defendant's experts regarding the defendant's treatment of the decedent, and was otherwise unsupported by the record (see Rico v New York Methodist Hosp., 242 AD3d at 789;  Paxton v Sosnowski, 238 AD3d at 782).

Accordingly, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff's motion which was for leave to renew her opposition to the defendant's motion for summary judgment dismissing the complaint insofar as asserted against it.

The plaintiff's remaining contention is without merit.

A court may impose financial sanctions upon an attorney pursuant to 22 NYCRR 130–1.1(a) for misrepresentations concerning citations in their briefs (see Landberg v City of New York, ––– AD3d ––––, 2026 NY Slip Op 03935, *6;  Matter of Julien v Arthur, ––– AD3d ––––, 2026 NY Slip Op 03308, *2).  By filing a brief that made misrepresentations concerning citations to Barbuto v Winthrop Univ. Hosp., on page 18, Verrino v HealthQuest Sys., on page 20, and Renna v Gullo and Rubino v Krainski, in the table of authorities, the plaintiff's counsel appears to have engaged in frivolous conduct that was “completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (22 NYCRR 130–1.1[c][1] ) and that involved the assertion of “material factual statements that are false” (id. § 130–1.1[c][3] ).  Accordingly, we direct the submission of affirmations or affidavits on the issue of whether, and in what amounts, sanctions and/or costs should or should not be imposed upon the plaintiff's counsel.

CONNOLLY, J.P., CHAMBERS, VOUTSINAS and HOM, JJ., concur.