New York Appellate Court Reverses Summary Judgment In Favor Of Nursing Home

The Supreme Court of the State of New York Appellate Division, Fourth Judicial Department (“New York Appellate Court”) held in its Memorandum and Order entered on January 28, 2022: “Here, defendant’s experts proffered opinions about decedent’s care at the nursing home facility that were not based on facts in the record because defendant failed to submit any of decedent’s medical records, certified or otherwise, to support those opinions. Additionally, those opinions were not based on facts personally known to the experts. Thus, the experts’ affidavits are “‘speculative or unsupported by any evidentiary foundation’ ” (Schuster v Dukarm, 38 AD3d 1358, 1359 [4th Dept 2007], quoting Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]), and have “no probative value” (Daniels v Meyers, 50 AD3d 1613, 1614 [4th Dept 2008]; see Lillie v Wilmorite, Inc., 92 AD3d 1221, 1222 [4th Dept 2012]; Piersielak v Amyell Dev. Corp., 57 AD3d 1422, 1423 [4th Dept 2008]). Because defendant failed to meet its initial burden on the motion, the burden never shifted to plaintiff, and denial of the motion “was required ‘regardless of the sufficiency of the opposing papers.'”

Background Facts

Plaintiff commenced a lawsuit to recover damages arising from injuries sustained by plaintiff’s decedent while he was a patient at a nursing home facility owned and operated by defendant. The complaint asserted causes of action for medical malpractice and violations of Public Health Law § 2801-d. Plaintiff appealed from an order granting defendant’s motion for summary judgment dismissing the complaint.

The New York Appellate Court stated: “We agree with plaintiff that Supreme Court erred in granting the motion because defendant did not meet its initial burden thereon. It is well settled that “a defendant’s burden is not met if the defendant’s expert renders an opinion that is . . . unsupported by competent evidence” (Tirado v Koritz, 156 AD3d 1342, 1344 [4th Dept 2017] [internal quotation marks omitted]). “[I]t is equally well settled that ‘opinion evidence must be based on facts in the record or personally known to the witness’ ” (id., quoting Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984]). Inasmuch as “summary judgment is the procedural equivalent of a trial . . . [, t]he moving party must sufficiently demonstrate entitlement to judgment, as a matter of law, by tender of evidentiary proof in admissible form” (Christopher P. v Kathleen M.B., 174 AD3d 1460, 1461 [4th Dept 2019] [internal quotation marks omitted]).”

Source Ritts v. Gowanda Rehabilitation and Nursing Center, 1026 CA 20-01556.

If you or a loved one may have been injured as a result of medical malpractice in a nursing home in New York or in another U.S. state due to a nursing home fall, nursing home aspiration, nursing home neglect, nursing home negligence, nursing home abuse, nursing home under-staffing, or the nursing home failing to properly care for a vulnerable adult, you should promptly find a New York medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your nursing home medical malpractice claim for you and represent you or your loved one in a nursing home medical malpractice case, if appropriate.

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