ANZOLONE v. Flushing Hospital and Medical Center, appellant.

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Supreme Court, Appellate Division, Second Department, New York.

Theresa ANZOLONE, etc., plaintiff-respondent, v. LONG ISLAND CARE CENTER, INC., et al., defendants-respondents, Flushing Hospital and Medical Center, appellant.

Decided: February 28, 2006

STEPHEN G. CRANE, J.P., GLORIA GOLDSTEIN, ROBERT A. LIFSON, and MARK C. DILLON, JJ. Bartlett, McDonough, Bastone & Monaghan, LLP, White Plains, N.Y. (Edward J. Guardaro, Jr., and Patricia D'Alvia of counsel), for appellant. Seeger Weiss, LLP, New York, N.Y. (Laurence V. Nassif of counsel), for plaintiff-respondent.

In an action to recover damages for medical malpractice, gross negligence, and wrongful death, the defendant Flushing Hospital and Medical Center appeals from an order of the Supreme Court, Queens County (Kitzes, J.), dated May 20, 2004, which denied its motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against it.

ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the motion which were for summary judgment dismissing the causes of action alleging gross negligence and wrongful death insofar as asserted against the appellant and any cross claims based thereon and for summary judgment dismissing the claim for punitive damages insofar as asserted against the appellant, and substituting therefor provisions granting those branches of the motion;  as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court properly denied that branch of the appellant's motion which was for summary judgment dismissing the plaintiff's cause of action to recover damages for medical malpractice insofar as asserted against it.   In response to the appellant's prima facie showing of entitlement to judgment as a matter of law (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642), the plaintiff raised a triable issue of fact as to whether the plaintiff's decedent received appropriate care, and whether the appellant's allegedly negligent treatment contributed to the progression of her decubitus ulcer from stage II to stage IV (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The appellant established its entitlement to judgment as a matter of law dismissing the plaintiff's causes of action alleging gross negligence and wrongful death insofar as asserted against it, any cross claims based thereon, and the claim for punitive damages insofar as asserted against it (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572), and the plaintiff failed to raise a triable issue of fact with respect to those causes of action, cross claims, and punitive damages claim.

With respect the cause of action alleging gross negligence, it is clear from the record that the appellant did not abandon the patient (see Graham v. Columbia-Presbyt. Med. Ctr., 185 A.D.2d 753, 754, 588 N.Y.S.2d 2) and its conduct was not “wanton or malicious” or “activated by evil or reprehensible motives” (Spinosa v. Weinstein, 168 A.D.2d 32, 43, 571 N.Y.S.2d 747;  see Arumugam v. Smith, 277 A.D.2d 979, 716 N.Y.S.2d 518;  Rinaldo v. Mashayekhi, 185 A.D.2d 435, 585 N.Y.S.2d 615;  Sultan v. Kings Highway Hosp. Ctr., 167 A.D.2d 534, 562 N.Y.S.2d 204).   Therefore, the Supreme Court should have granted summary judgment dismissing the cause of action alleging gross negligence insofar as asserted against the appellant, any cross claims based thereon, and the claim for punitive damages insofar as asserted against the appellant, which is based on the cause of action alleging gross negligence.

Moreover, the plaintiff made no effort to refute the appellant's showing that the plaintiff's decedent died from her underlying medical conditions, not the appellant's treatment.   Therefore, the Supreme Court should have granted that branch of the appellant's motion which was for summary judgment dismissing the cause of action alleging wrongful death insofar as asserted against it and any cross claims based thereon, on the ground that the plaintiff failed to raise a triable issue of fact on the issue of causation (see Bickford v. St. Francis Hosp., 19 A.D.3d 344, 796 N.Y.S.2d 149, lv. denied 5 N.Y.3d 710, 804 N.Y.S.2d 34, 837 N.E.2d 733).

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