SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
20
CA 10-01950
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, GREEN, AND GORSKI, JJ.
KENT G. HUMPHREY, INDIVIDUALLY AND AS EXECUTOR OF
THE ESTATE OF MARY E. HUMPHREY, DECEASED,
PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
SHEILA F. GARDNER, M.D., ET AL., DEFENDANTS,
AND GENEVA GENERAL HOSPITAL, DEFENDANT-RESPONDENT.
DEMPSEY & DEMPSEY, BUFFALO (HELEN KANEY DEMPSEY OF COUNSEL), FOR
PLAINTIFF-APPELLANT.
BROWN & TARANTINO, LLC, BUFFALO (ANN M. CAMPBELL OF COUNSEL), FOR
DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered November 27, 2009 in a medical malpractice
action. The order, insofar as appealed from, granted the motion of
defendant Geneva General Hospital for summary judgment dismissing the
amended complaint.
It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, the motion of
defendants Sheila F. Gardner, M.D., Gardner Anesthesiology Services,
P.C. and Geneva General Hospital is denied with respect to defendant
Geneva General Hospital and the amended complaint is reinstated
against that defendant.
Memorandum: Plaintiff, individually and as executor of the
estate of his wife (decedent), appeals from an order insofar as it
granted that part of the motion of Sheila F. Gardner, M.D., Gardner
Anesthesiology Services, P.C. and Geneva General Hospital (defendants)
for summary judgment dismissing the amended complaint against the
latter defendant (hereafter, Hospital) in this medical malpractice
action. We agree with plaintiff that Supreme Court erred in granting
the motion with respect to the Hospital inasmuch as defendants failed
to meet their “initial burden of establishing the absence of any
departure from good and accepted medical practice or that the
plaintiff[’s decedent] was not injured thereby” with respect to the
Hospital (Williams v Sahay, 12 AD3d 366, 368; see James v Wormuth, 74
AD3d 1895). “Where, as here, an expert’s affidavit fails to address
each of the specific factual claims of negligence raised in [the]
plaintiff’s bill of particulars, that affidavit is insufficient to
support a motion for summary judgment as a matter of law” (Larsen v
-2- 20
CA 10-01950
Banwar, 70 AD3d 1337, 1338; see Terranova v Finklea, 45 AD3d 572; Kuri
v Bhattacharya, 44 AD3d 718). In this case, the affidavit of
defendants’ expert did not address several claims of negligence raised
in the amended complaint, as amplified by the bill of particulars,
including, inter alia, the Hospital’s alleged failure to call a code
and initiate cardiopulmonary resuscitation (CPR) in a timely manner.
Indeed, defendants’ own submissions suggest that there may have been a
delay of 15 minutes between the discovery of decedent unresponsive in
her hospital bed and the initiation of CPR, a delay that defendants’
expert failed to address in his affidavit. Consequently, that part of
defendants’ motion with respect to the Hospital should have been
denied, regardless of the sufficiency of plaintiff’s opposing papers
(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Larsen, 70
AD3d at 1338).
Entered: February 10, 2011 Patricia L. Morgan
Clerk of the Court