Simington v City of New York
2018 NY Slip Op 03479 [161 AD3d 524]
May 15, 2018
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 27, 2018


[*1]
 Kenneth Simington, Appellant,
v
City of New York et al., Defendants, and New York City Health and Hospital Corporation, Respondent.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 23, 2015, which granted the motion of New York City Health & Hospitals Corporation (HHC) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

HHC established its entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's injury occurred at the moment of his assault by two other inmates, and that there was no treatment they could have been rendered that would have prevented his blindness that was caused by the blunt force trauma he sustained during the assault (see e.g. Bullard v St. Barnabas Hosp., 27 AD3d 206 [1st Dept 2006]). In opposition, plaintiff failed to raise a triable issue of fact. The evidence plaintiff submitted was speculative and insufficient to raise an issue of fact as to whether HHC had departed from the standard of care or whether such alleged departures were a proximate cause of the blindness (see Jackson v Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine, 146 AD3d 572 [1st Dept 2017]; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [1st Dept 2006]). Concur—Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.