Opinion
2018-00954 Index No. 503747/12
09-25-2019
Kolman BOLTYANSKY, etc., Appellant, v. NEW YORK COMMUNITY HOSPITAL, Respondent.
Law Office of Yuriy Prakhin, P.C., Brooklyn, NY, for appellant. Bre´a Yankowitz P.C., Floral Park, N.Y. (Arthur I. Yankowitz and Patrick J. Bre´a of counsel), for respondent.
Law Office of Yuriy Prakhin, P.C., Brooklyn, NY, for appellant.
Bre´a Yankowitz P.C., Floral Park, N.Y. (Arthur I. Yankowitz and Patrick J. Bre´a of counsel), for respondent.
RUTH C. BALKIN, J.P., JOHN M. LEVENTHAL, SHERI S. ROMAN, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is affirmed, with costs.
In February 2012, Pesya Boltankaya, who was 87 years old, presented to the emergency room of the defendant, New York Community Hospital, with an infection of the right foot. Boltankaya was assessed as being at risk for falls and was placed on fall prevention protocol. The next day, Boltankaya fell from her hospital bed and suffered a fractured hip, requiring surgery. Boltankaya subsequently commenced this action, inter alia, to recover damages for medical malpractice. During the pendency of the action, Boltankaya died, and her son, as administrator of her estate, was substituted as the plaintiff. Following discovery, the defendant moved for summary judgment dismissing the medical malpractice cause of action. The Supreme Court granted the defendant's motion, and the plaintiff appeals.
"A defendant seeking summary judgment in a medical malpractice action bears the initial burden of establishing, prima facie, either that there was no departure from the applicable standard of care, or that any alleged departure did not proximately cause the plaintiff's injuries. In opposition, the plaintiff must demonstrate the existence of a triable issue of fact as to the elements with respect to which the defendant has met its initial burden" ( Michel v. Long Is. Jewish Med. Ctr., 125 A.D.3d 945, 945–946, 5 N.Y.S.3d 162 ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112, 50 N.Y.S.3d 503 ; Cham v. St. Mary's Hosp. of Brooklyn, 72 A.D.3d 1003, 1004, 901 N.Y.S.2d 65 ). Here, the defendant met its prima facie burden by submitting an affirmation of a physician specializing in internal medicine and geriatric medicine, who opined that the fall prevention measures initiated by the defendant were in accordance with the standard of care and that, in any event, the alleged malpractice did not cause Boltankaya's injuries. In opposition, the plaintiff failed to raise a triable issue of fact. The affidavit of the plaintiff's purported expert—a registered nurse, licensed family nurse practitioner, and legal nurse consultant with a Ph.D.—was insufficient to raise a triable issue of fact. The nurse was not a medical doctor and lacked the qualifications to render a medical opinion as to the relevant standard of care, and whether the defendant deviated from such standard (see Novick v. South Nassau Communities Hosp., 136 A.D.3d 999, 1001, 26 N.Y.S.3d 182 ; Collymore v. Montefiore Med. Ctr., 39 A.D.3d 237, 237, 833 N.Y.S.2d 438 ; Glasgow v. Chou, 33 A.D.3d 959, 962, 826 N.Y.S.2d 303 ; Elliot v. Long Is. Home, Ltd., 12 A.D.3d 481, 482, 784 N.Y.S.2d 615 ; Mills v. Moriarty, 302 A.D.2d 436, 436, 754 N.Y.S.2d 901 ), as well as to whether any deviation was a proximate cause of the injuries (cf. Simpson v. Edghill, 169 A.D.3d 737, 738–739, 93 N.Y.S.3d 399 ; Martinez v. Quintana, 138 A.D.3d 791, 793, 29 N.Y.S.3d 529 ). Accordingly, we agree with the Supreme Court's determination to grant the defendant's motion for summary judgment dismissing the medical malpractice cause of action.
BALKIN, J.P., LEVENTHAL, ROMAN and CONNOLLY, JJ., concur.