The following papers were read on this motion by defendant for an order granting summary judgment and dismissing plaintiff's complaint, pursuant CPLR 3212.

Papers/Numbered

Notice of Motion, Affirmation, Affidavit and Exhibits E19-20

Affirmation In Opposition, Affidavit, Exhibits E34-35

Affirmation In Reply E40

Upon the foregoing papers, it is ordered that this motion is determined as follows:

This is an action to recover damages for medical malpractice, negligence, gross negligence, wrongful death, and violations of Public Health Law §§ 2801-d and 2803-c, arising from the alleged negligence of Defendant in its care and treatment of Ellen Spilgis-Kearney while she was a resident of Defendant from November 29, 2013 through December 13, 2013, following hip surgery. Plaintiff James Brian Kearney, as executor of decedent's estate, alleges among other things that Defendant failed to properly monitor and medicate decedent, resulting in Coumadin toxicity that in turn caused an intracerebral hemorrhage, and ultimately her death on December 13, 2013.

Defendant moves for summary judgment and dismissal of Plaintiff's complaint, on the grounds that Defendant did not depart from the reasonable and accepted standards of care. Plaintiff opposes the motion.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issues of fact (Zuckerman v City of New York, 49 NY2d 557, 562 [1980].) When the moving party has met its prima facie burden, the opposing party must set forth evidentiary proof demonstrating the existence of a material issue of fact in order to defeat summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)

"Generally, the elements of a cause of action sounding negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof." (Stukas v Streiter, 83 AD3d 18, 23 [2011].) Medical malpractice is a "species of negligence," and "a claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician." (Weiner v Lenox Hill Hosp., 88 NY2d 784, 787 [*2][1996].) Put another way, "where the directions given or treatment received by the patient is in issue, consideration of the professional skill and judgment of the practitioner or facility is required and the theory of medical malpractice applies." (Friedmann v New York Hospital-Cornell Medical Center, 65 AD3d 850, 851 [1st Dept 2009].)

In a medical malpractice action, a defendant seeking summary judgment must make a prima facie showing of the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby (Fotiou v Goodman, 74 AD3d 1140 [2010]; Williams v Sahay, 12 AD3d 366, 368 [2004]). Similarly, on a wrongful death claim premised upon defendant's alleged medical malpractice, defendant makes a prima facie showing of entitlement to summary judgment by demonstrating they did not depart from accepted standards of medical practice during treatment of the decedent. (Peterson v Lovecchio, 91 AD3d 928, 928 [2d Dept 2012]; Matos v Khan, 119 AD3d 909, 911 [2d Dept 2014].)

The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific, and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care (see Suib v Keller, 6 AD3d 805 [2004]; Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755 [2001]). In opposition, the plaintiff must then submit a physician's affidavit to rebut the prima facie showing made by defendant's physician. (See Stukas v Streiter, 83 AD3d at 30-31.)

Here, Defendant made a prima facie showing of entitlement to judgment as a matter of law dismissing the causes of action alleging negligence, medical malpractice, and wrongful death, by submitting the expert affirmation of Wadie Bahou, M.D., a board-certified doctor of internal medicine with subspecialties in medical oncology and hematology. In his affirmation, Dr. Bahou opined that the care and treatment of the decedent rendered by Defendant was in accordance with good and accepted standards of medical care at all relevant times. Dr. Bahou specifically opines that Defendant did not cause the decedent to suffer Coumadin toxicity and did not cause decedent's intracerebral hemorrhage. Dr. Bahou opined that the plan of care implemented by the attending physician at Hillside Manor, Dr. Bhardwaj, properly called for administering the anti-coagulant drug Coumadin, as part of a plan to prevent deep vein thrombosis or a pulmonary embolism following Mrs. Kearney's hip surgery. Dr. Bahou opined that decedent's blood clotting response was appropriately monitored with IT/INR testing and her dosage of Coumadin appropriately adjusted. Dr. Bahou notes that on December 13, 2013, the day that decedent became unresponsive and was transferred to Jamaica Hospital Medical Center, her IT/INR levels were still within the appropriate therapeutic range. Dr. Bahou further opined that Coumadin alone could not cause the dramatic change in Mrs. Kearney's PT/INR levels that occurred on December 13, 2013 after her transfer to Jamaica Hospital, and opined that "decedent's spontaneous intracerebral hemorrhage caused the release of a factor into the decedent's bloodstream which impaired her coagulation system and resulted in the elevated INR."

However, in opposition, the affirmation of Dr. Howard Schwartz, M.D., a physician specializing in internal medicine with experience in hospital risk management and emergency and critical care, established the existence of triable issues of fact as to whether Defendant departed from accepted standards of care in their care and treatment of Mrs. Kearney. In his [*3]affirmation, Dr. Schwartz opined that Defendant departed from standards of good and accepted care by, among other things, failing to continue daily testing of Mrs. Kearney's IT/INR levels until they stabilized, and by failing to recognize and adequately respond to early signs of Coumadin toxicity on December 6, 2013, including a decline in functional status and the onset of left drop foot for the first time since her admission. Dr. Schwartz further opines that Defendant departed from accepted standards of care by administering an increased dosage of Coumadin on December 5, 2013, without first ascertaining per PT/INR levels.

In light of the existence of triable issues of fact as to whether Defendant departed from the accepted standards of care, summary judgment on Defendant's malpractice, negligence, and wrongful death claims is DENIED.

With respect to the causes of action alleging gross negligence and violations of Public Health Law §§ 2801-d and 2803-c, Defendant failed to establish its entitlement to judgment as a matter of law because neither the affirmation of counsel nor the affirmation of Dr. Bahou addresses those issues. Dr. Bahou's affirmation merely recites in a conclusory fashion the relevant statutory language, and fails to address the various regulations set forth in the Plaintiff's bill of particulars as the basis for this cause of action. (See Pichardo v St. Barnabas Nursing Home, Inc., 134 AD3d 421, 425 [1st Dept 2015]; compare Gold v Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834 [2d Dept 2011]). Since Defendant failed to meet its initial burden on the aforementioned causes of action, it is not necessary to consider the sufficiency of Plaintiffs' papers in opposition (Winegrad, 64 NY2d at 853).

For the foregoing reasons, Defendant's motion seeking summary judgment and dismissal of Plaintiff's complaint pursuant to CPLR § 3212 is DENIED.

This constitutes the Decision and Order of the Court.