The following papers numbered 1 to 11 Read on this motion SUMMARY JUDGMENT Noticed on_____ and duly submitted as No. 20, 21 & 22 on the Motion Calendar of 6/28/10

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion to:

Papers Numbered

Notice of Motions and Affidavits Annexed ................ 1-6

Memorandum of Law ....................................... 7

Affirmation in Support of Motion ........................ 8

Plaintiff Affirmation in Opposition dated May 17, 2010 .. 9 [*2]

Replying Affidavits ..................................... 10-11

Other:

Upon the foregoing papers, the foregoing motion(s) [and/or cross-motions(s), as indicated below, are consolidated for disposition] and decided as follows.

Defendants move for summary judgment dismissing the plaintiff's action. Upon a review of the moving papers and opposition submitted thereto the motions are granted.

The plaintiff, in an unrelated accident, suffered a traumatic brain injury in 1997. In this negligence action, he suffered further injury to his hand and head in 2001. Despite the allegations of a traumatic brain injury, the plaintiff has commenced this action in his own individual capacity.

There is no evidence that a guardian was ever appointed to represent his interest nor have there been any allegations that the plaintiff is not incompetent.

As a result of his brain injury, the plaintiff was accepted to participate in the New York State Department of Health Traumatic Brain Injury Medicaid Waiver Program ("TBI Waiver Program"). According to the TBI Waiver Program manual (June 2006 version), the program is administered by the New York State Department of Health through Regional Resource Development Centers ("RRDC") and Regional Resources Development Specialists ("RRDS") who serve specific counties throughout the state. The manual notes that program uses Medicaid funds to provide support, services and assistance to individuals with a traumatic brain injury to successfully include them in the community, as opposed to being institutionalized. The philosophy of the program was set forth as follows:

The dignity of risk and right to fail are integral parts of the waiver's philosophy. The philosophy of the waiver supports the participant's right to choose where to live, who to live and socialize with, and what goals and activities to pursue.

Waiver services are provided based on the participant's unique strengths, needs, choices and goals. The individual is the primary decision maker and works in cooperation with providers to develop a plan for services. This process leads to personal empowerment, increased independence, greater community inclusion, self reliance and meaningful and productive activities.

See Program Manual at p. 9 annexed to defendant Priority Home Care, Inc moving papers as Exhibit "I"

Defendant Priority Home Care, Inc ('Priority"), a subsidiary of defendant Premier Home [*3]Health Care Services, Inc., was authorized as a Service Provider Program and as such it provided home and community support staff, independent living skills training and service coordination to participants of the TBI Waiver Program. Priority became the service provider for the plaintiff in July of 2006.

In October of 2006, the plaintiff requested assistance from Priority in finding a new residence. The plaintiff lived in a pet free building in the Bronx and was being evicted because he owned a dog.

The TBI Housing Program Guidelines which provided guidance to service coordinators, provides as follows:

Role of the Service Coordinator and Service Coordinator Agency

In addition to completing the housing application forms, the service coordinator under the direction of the service coordination agency, helps the waiver participant assess housing and housing budget needs, locate housing and arrange payment for housing utilities and services. However, the service coordinator does not choose housing for the wavier participant. To the extent possible, the waiver participant and involved family and friends should make the housing choice. The service coordinator's role is to enable this choice to become a realty.

The service coordinator may be expected to perform the following tasks:

... Locate desirable, affordable, accessible housing of an individual's choice that meets fair market rents for housing in the region. (Except in NYC and the Hudson Valley regions where RPMs provide housing locating service); ...

See TBI Housing Program Guidelines at p 6 annexed to Priority's moving papers as Exhibit K.

In accord with the programs guidelines, Priority submitted a written housing referral locator form to defendant Center for Urban Community Services, Inc. ("CUCS"). CUCS had an agreement with the New York State Office of Mental Health to provide locating services for the traumatic brain injury waiver program in New York City. The Referral indicated that the plaintiff sought a one bedroom apartment in the same neighborhood, or close to current neighborhood, which is within walking distance or a short commute from Jacobi Hospital. With regard to his accessibility needs, the referral forms stated that the plaintiff required an apartment with a bathroom modified for individuals with disabilities, i.e. a walk-in shower. In addition, the plaintiff required an apartment with elevator access or on the ground floor of a multiple dwelling or in a private house.

Shortly thereafter, CUCS found a non- elevator accessed apartment, on the second floor of a newly constructed building, located at 1615 Hobart Avenue in the Bronx. The building, was owned by defendant Lustre Properties, Inc. ("Lustre"). The plaintiff [*4]viewed the apartment and subsequently executed a lease on February 24, 2007.

After living in the apartment for about four months, the plaintiff alleges he fell going up the stairs in the common area of the building on June 14, 2007, at approximately 1:00 p.m. After he fell, he picked himself up and proceeded to his apartment. He felt immediate pain to his leg but the pain lessened within half an hour. Plaintiff reported the accident later in the day to his home attendant. Consequently, the home attendant called 911. An ambulance responded and recommended the plaintiff go to the hospital but he refused. The plaintiff alleges that as a result of the fall he sustained blunt force trauma and a laceration to the left leg, resulting in infection which led to the subsequent amputation above the knee on August 30, 2007.

Plaintiff commenced a negligence action against Priority, CUCS and Lustre. With respect to Priority, the plaintiff alleges that it failed to provide constant supervision, assistance and services and negligently provided inappropriate housing for the plaintiff. The plaintiff further alleges that CUCS deviated from good and accepted standards of social and human services and that it negligently placed the plaintiff in inappropriate housing. Lastly, plaintiff contends that Lustre was negligent in the maintenance of the subject staircase.

Lustre moves for summary judgment on the grounds the subject staircase was safe, complied with all applicable rules and regulations and free of any defects. The Plaintiff did not submit any opposition to Lustre's motion. As such, that motion is granted.

Priority and CUCS move for summary judgment on various grounds. Priority contends that it did not breach any duty owed to the plaintiff since it did not locate the subject apartment. Both Priority and CUCS contend that it was the plaintiff who, upon inspecting the apartment, choose to accept it. The plaintiff was free to reject the apartment. In addition, Priority argues that the plaintiff's injuries are not casually related to any alleged negligence of any of the named defendants. Instead, the moving defendant contends that the amputation of the plaintiff's leg is the result of a long standing medical condition unrelated to the fall on the subject staircase.

The Court finds that the Priority defendants met their initial burden in establishing entitlement to summary judgment on the grounds that the plaintiff's amputation was not a result of any of the defendants alleged negligence. It annexed the affirmed report of its medical expert Kenneth Steinglass, M.D. ("Dr. Steinglass"), a board certified vascular and thoracic surgeon. Upon reviewing the plaintiff's medical records which included: records from Albert Einstein hospital, Jacobi Medical Center, Bronx Center for Rehabilitation and the Ambulance Call Reports generated by the New York City Fire [*5]Department and Priorty's records, plaintiff's deposition transcript and Dorothy Rizzo's deposition transcript, Dr. Steinglass opined that the fall on June 14, 2007 was not a substantial contributing factor, thus not a proximate cause of the amputation of the plaintiff's left leg. The doctor concluded that the plaintiff's severe underlying vascular disease which included arterial insufficiency and deep vein thrombosis was the proximate cause of the amputation of the plaintiff's left leg.

The doctor noted that in 2004 the plaintiff underwent a left femoro-popliteal by-pass (the use of a graft to bypass a blockage in the femoral artery in order to improve or restore blood flow to the lower leg) for severe peripheral arterial disease in his lower left extremity. Dr. Steinglass explained that the majority of these grafts fail within three to five years.

After the graft by-pass, the plaintiff went to the hospital complaining of left leg pain and swelling on August 23, 2004; September 10 and 15, 2004; April 17, 2005; May 2, 2005; November 14, 2005; January 22, 2007 and May 4, 2007. The Court notes that in medical records for May 4, 2007 (approximately one month before the alleged fall) the plaintiff complained of pain and discoloration of both lower extremities.

Dr. Steinglass further noted that the Jacobi Medical Center records for the plaintiff's June 17, 2007 admission, which is three days after the alleged fall, reflects that the plaintiff had not taken his Coumadin medication for two weeks. According to the defendant's expert, Coumadin is an anticoagulant prescribed to help prevent graft thrombosis (graft failure). The beneficial effects of Coumadin are lost three to five days after discontinuation of the medication.

In addition, the June 17, 2007 admission records documented that both plaintiff's lower extremities were swollen and discolored. Moreover, there was no indication in the records evidencing recent trauma or lacerations. An ultrasound indicated by-pass graft was occluded and an angiogram confirmed a clotted left lower extremity by-pass graft.

On August 27, 2007 the plaintiff presented to the hospital with multiple ulcerations and infection to the lower left extremity. Dr. Steinglass further noted that the operative report revealed the plaintiff's by-pass had failed and that there was critical ischemia of the left leg. The pathology report was consistent with such finding, reflecting severe atherosclerosis and extensive ischemic ulcerations on the shin and lateral ankle.

Dr. Steinglass opined, upon a review of the above records, that it was the failure of the by-pass graft that led to the progressively severe arterial insufficiency of the lower left limb and eventually to ulceration, infection and the need for amputation. He further [*6]opined that any alleged laceration on the knee resulting from the fall on June 14, 2007 was not the proximate cause of the amputation of the plaintiff's leg.

In opposition the plaintiff failed to raise an issue of fact. Despite the plaintiff's failure to timely serve an Affirmation in Opposition pursuant to this Court's directive, the Court nevertheless accepted the plaintiff's Affirmation in Opposition dated May 17, 2010. Since the plaintiff served the defendants in open Court on the date this matter was scheduled for oral argument, the Court adjourned the matter to June 21, 2010 for the defendants to serve Reply Affirmations. On the adjourned date, however, the plaintiff served a second Affirmation in Opposition. The Court did not accept nor reject the second set of opposition papers. Instead, it adjourned the matter again to June 28, 2010 so that the defendants could submit Reply Affirmations with respect to both Affirmations in Opposition.

What apparently happened is that the plaintiff failed to annex to it's May 17th Affirmation in Opposition an opinion from a medical expert with respect to causation. In an attempt to remedy this defect, he just took it upon himself to serve a second Affirmation in Opposition on the return date of the motion. The Court agrees with the defendants that the second Affirmation in Opposition dated June 21, 2010 is procedurally defective and hereby rejects same.

Since the plaintiff only submitted a copy of the June 21st Affirmation in Opposition for this Court's consideration, there is no opposition to the defendants motion before this Court. Even if the plaintiff had submitted a copy of the May 17th opposition papers, the Court would nonetheless find them insufficient to raise an issue of fact. A review of a copy of the May 17th opposition papers annexed to the defendants' Reply Affirmation establishes the plaintiff's failure to raise an issue of fact with respect to causation since there was no opinion from a medical expert. Moreover, even if the Court accepted the second affirmation in opposition, the Court would still find it failed to raise an issue of fact on causation since the affirmed report of the plaintiff's medical expert failed to indicate it considered all the pertinent medical records. As such, the Court finds the medical opinions of plaintiff's expert are speculative in nature. Where an expert's ultimate findings are speculative or unsupported by any evidentary foundation the opinion should be given no probative force and is insufficient to withstand summary judgment. See Amaya v. Denihan Ownership Co., LLC, 30 AD3d 327 (1st Dept 2006).

Accordingly, the motions are granted. This action is hereby dismissed.

This constitutes the decision and order of the Court. [*7]

Dated: 2/04/11

Bronx, Now York

NORMA RUIZ, J.S.C.

NCAS

Whitehouse v. Priority Home Care Inc.