Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:

Upon the foregoing cited papers and after considering oral argument on April 1, 2025, pursuant to CPLR § 3212(b), Defendants' motion for summary judgment is GRANTED in part and DENIED in part.

Plaintiff commenced this action sounding in medical malpractice and negligence, alleging that Defendants failed to properly care for and treat decedent Shirley Davis, resulting in [*2]the development of decubitus ulcers, sepsis and ultimately her death.^[FN1] Plaintiff also asserts claims under Public Health Law § 2801-d against Defendant Schulman.^[FN2] By stipulation dated March 3, 2022, Plaintiff withdrew all claims for punitive damages and reckless conduct against Defendant Brookdale.^[FN3]

At the conclusion of discovery and following the filing of the note of issue, Defendants moved for summary judgment.^[FN4]

Summary judgment:

Summary judgment is a drastic remedy that deprives a litigant of the opportunity to present their case at trial and should only be granted where there is no genuine issue of material fact. Bonaventura v. Galpin, 119 AD3d 625, 625 (2d Dept. 2014). The Court's role on such a motion is not to resolve factual disputes or assess credibility, but solely to determine whether triable issues exist. Stukas v. Streiter, 83 AD3d 18, 23 (2d Dept. 2011). In making this determination, the evidence must be viewed in the light most favorable to the non-moving party. Pearson v. Dix McBride, LLC, 63 AD3d 895, 895 (2d Dept. 2009).

To prevail on a claim of medical malpractice, a plaintiff must establish (1) a deviation from accepted medical practice, and (2) that such deviation was a proximate cause of the alleged injury. Mendoza v. Maimonides Med. Ctr., 203 AD3d 715, 716 (2d Dept. 2022).

In actions based on lack of informed consent, a plaintiff must demonstrate that:

(1) the provider failed to disclose reasonable alternatives and foreseeable risks that a prudent practitioner would have disclosed under similar circumstances;

(2) a reasonable patient in the same position would not have consented had they been fully informed; and

(3) the lack of informed consent was a proximate cause of the injury.^[FN5]

On a motion for summary judgment in a medical malpractice action, the defendant bears the initial burden of demonstrating either the absence of a deviation from accepted practice or that any such deviation did not cause the plaintiff's injuries. Dye v. Okon, 203 AD3d 702, 703 (2d Dept. 2022). If the defendant meets this burden, the plaintiff must then produce evidentiary proof sufficient to raise a triable issue of fact. Cerrone v. North Shore-Long Is. Jewish Health Sys., Inc., 197 AD3d 449, 450 (2d Dept. 2021).

Where the parties submit conflicting expert opinions, summary judgment is inappropriate, as such credibility determinations are reserved for the jury. Gupta v. Lescale, 224 AD3d 668, 669 (2d Dept. 2024).

Public Health Law Claims Against Schulman:

"Liability under the Public Health Law contemplates injury to the patient caused by the deprivation of a right conferred by contract, statute, regulation, code or rule, subject to the defense that the facility exercised all care reasonably necessary to prevent and limit the deprivation and injury to the patient." Deitch v. Sands Point Ctr. for Health and Rehabilitation, 237 AD3d 1043 (2d Dept. 2025). Therefore, the standard for liability under Public Health Law § 2801-d is neither deviation from accepted standards of medical practice nor breach of a duty of care, rather whether injury was "caused by the deprivation of a right conferred by contract, statute, regulation, code, or rule." Id. at 1044 (citing Schwartz v. Partridge, 179 AD3d 963, 965 [2d Dept. 2020]).

Defendants failed to establish prima facie entitlement to summary judgment on Plaintiff's first and second causes of action under Public Health Law § 2801-d. The expert affirmations submitted ^[FN6] did not address whether Schulman violated any applicable statute, regulation, or rule. See Deitch, 237 AD3d at 1044; Schwartz, 179 AD3d at 965; Gold v. Park Ave. Extended Care Ctr. Corp., 90 AD3d 833, 834 (2d Dept. 2011). Accordingly, this branch of Defendants' motion is denied, regardless of the sufficiency of Plaintiff's opposition. Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985).

Punitive Damages Against Schulman:

"Punitive damages are recoverable in a medical malpractice action only where the defendant's conduct evinces a 'high degree of moral culpability,' or constitutes 'willful or wanton negligence or recklessness.'" Hill v. 2016 Realty Assoc., 42 AD3d 432 (2d Dept. 2007). Generally, this conduct must amount to the "conscious disregard of the rights of others" or "conduct so reckless as to amount to such disregard." Randi A.J. v. Long Island Surgi-Ctr., 46 AD3d 74 (2d Dept. 2007).

Defendants demonstrated that Schulman's conduct did not rise to the level of willful or wanton negligence.^[FN7] Plaintiff failed to rebut this showing with competent evidence.^[FN8] See Hill, 42 AD3d at 433. Accordingly, this branch of Defendants' motion is granted and the third cause of action for punitive damages against Schulman is dismissed.

Negligence and Malpractice Claims Against Brookdale:

Defendants established entitlement to summary judgment on the first and fourth causes [*3]of action against Brookdale. The expert affirmations submitted by Defendants established the care provided to Plaintiff conformed to good and accepted medical practice and that such care was not a proximate cause of Plaintiff's alleged injuries.^[FN9] Chillious v. Edouard, 234 AD3d 737 (2d Dept. 2025). Plaintiff's opposition failed to raise a triable issue of fact, was conclusory, speculative, and unsupported by the record.^[FN10] See Wagner v. Parker, 172 AD3d 954 (2d Dept. 2019). Moreover, Plaintiff's expert failed to establish familiarity with the applicable standards of geriatric care. Abruzzi v. Maller, 221 AD3d 753 (2d Dept. 2023); DiLorenzo v. Zaso, 148 AD3d 1111 (2d Dept. 2017). Accordingly, this branch of Defendants' motion is granted and the first and fourth causes of actions against Defendant Brookdale are dismissed.

It is hereby ORDERED that Defendants' motion is granted to the extent that:

• Plaintiff's first cause of action is dismissed as to Defendant Brookdale only; and

• Plaintiff's third and fourth causes of action are dismissed in their entirety.

It is further ORDERED that Defendants' motion is denied as to Plaintiff's first and second causes of actions against Defendant Schulman.

The caption shall be amended to reflect the dismissal of Brookdale as follows:

This constitutes the Decision and Order of the Court.