Supreme Court, Richmond County

Decided on April 3, 2026

Index No. 152188/2023

Charles M. Troia, J.

[*1]

The following e-filed documents, listed by NYSCEF document number (Motion 001) 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 41, 42, 43, 44, 45, 46, 47,and 48 were read on defendant's motion for SUMMARY JUDGMENT.

In this medical malpractice action, the defendant, Staten Island University Hospital Ocean Breeze (North) (hereinafter "SIUH"), moves for summary judgment and dismissal of the complaint pursuant to CPLR § 3212, and for such other and further relief as this court deems just and proper.

The defendant supports its motion, inter alia, with the expert affirmation of Calin S. Moucha, M.D. (NYSCEF Doc. No. 37), a physician duly licensed to practice medicine in New York who is board certified in orthopedic surgery.

The plaintiff opposes the defendant's motion and has submitted, inter alia, the expert affirmation of David A. Meyer, M.D. (NYSCEF Doc. No. 42), a physician duly licensed to practice medicine in New York who is board certified in surgery.

Upon the foregoing papers, the defendant's motion is granted in its entirety. The court's decision is outlined below.

FACTS

This action arises from the alleged negligent treatment of the plaintiff, Michael [*2]Windland, (hereinafter "plaintiff") by the defendant during an orthopedic surgical procedure performed on August 13, 2021 by Dr. Hip-Flores, a nonparty.

On August 11, 2021, at 8:44 p.m., the plaintiff arrived at SIUH by ambulance following a fall in his shower which resulted in a right displaced intertrochanteric hip fracture. After an evaluation and examination, surgical intervention was discussed with the plaintiff, who agreed to proceed after being informed of the risks, benefits, and alternatives to the proposed right hip intramedullary nail procedure.

According to the SIUH record, the plaintiff's medical history was significant for three heart attacks, surgical placement of seven stents, hypertension, diabetes, asthma, COPD and dyslipidemia, gastric bypass surgery in 2004 and bleeding marginal ulcers that required blood transfusions approximately four years earlier. His social history was significant for a pack-a-day tobacco use.

On August 13, 2021, Dr. Hip-Flores performed a right hip intramedullary ("IM") nail procedure. There were no complications reported. On August 14, 2021, the plaintiff was evaluated and had no complaints. The surgical wound was clean, dry and intact. His pain was controlled with medication. Bedside therapy was commenced. On August 15, 2021, the plaintiff complained of right hip pain in the morning, which improved with pain medication. The plan was for discharge to short-term rehabilitation once his pain was under control.

On August 16, 2021, the plaintiff complained of abdominal pain and was noted to be pale. He had not had a bowel movement or passed flatus since the surgery, resulting in abdominal distention and tenderness. A pelvic x-ray demonstrated right hip hardware, moderate colonic stool burden, and a few small bowel loops that appeared borderline dilated. It was documented that the findings may reflect an ileus.

On August 17, 2021, the plaintiff reported having two bowel movements after taking laxatives. However, abdominal pain and distention continued. A CT of the abdomen and pelvis demonstrated intraperitoneal free air with inflammatory changes centered in the left upper quadrant in the region of the gastrojejunostomy, which was compatible with bowel perforation likely at the gastric bypass surgery site. Dr. Angela Glasnapp of bariatric surgery was consulted for a perforated viscus. An emergent diagnostic laparoscopy and possible exploratory laparotomy was recommended for a possible bowel resection and/or ostomy.

On August 17, 2021, Dr. Glasnapp performed a diagnostic laparoscopy, laparoscopic Graham patch repair of a perforated marginal ulcer, and drainage of intraabdominal abscess. There were no complications noted. The postoperative diagnosis was a perforated marginal ulcer at the gastrojejunostomy in the upper quadrant of the abdomen.

The plaintiff remained hospitalized until August 31, 2021, at which time he was discharged to Golden Gate Rehabilitation Center for short-term rehabilitation. He was discharged from Golden Gate Rehabilitation to home on October 12, 2021.

DISCUSSION

Summary judgment is a drastic remedy that deprives litigants of their day in court, and it "should only be employed when there is no doubt as to the absence of triable issues." Andre v Pomeroy, 35 NY2d 361 (1974); Bonaventura v Galpin, 119 AD3d 625 (2d Dept 2014); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). The function of the court on a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility but merely determine whether such issues exist. Guadalupe v New York City Tr. Auth., 91 AD3d 716 (2d [*3]Dept 2012); Kolivas v Kirchoff, 14 AD3d 493 (2d Dept 2005). Importantly, in determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party. Pearson v Dix McBride, LLC, 63 AD3d 895 (2d Dept 2009). The proponent of a summary judgment motion is required to tender sufficient evidence to demonstrate the absence of any material issues of fact, and the failure to do so requires denial of the motion regardless of the sufficiency of the opposing papers. Alvarez v Prospect Hosp., 68 NY2d 320 (1986).

A physician moving for summary judgment dismissing a complaint alleging medical malpractice must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of plaintiff's injuries. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Stukas v Streiter, 83 AD3d 18 (2d Dept 2011). To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars. Mackauer v Parikh, 148 AD3d 873 (2d Dept 2017); Schwartzberg v Huntington Hospital, 163 AD3d 736 (2d Dept 2018). Once the showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden (see Mackauer; Schwartzberg).

In opposition to a summary judgment motion, the plaintiff's expert must address the contentions of the defense expert to establish an issue of fact. Failure to do so warrants dismissal of the action. Senatore v Epstein, 128 AD3d 794 (2d Dept 2015). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment." Alvarez; see also Kramer v Rosenthal, 224 AD2d 392 (2d Dept 1996). Moreover, "where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation the opinion should be given no probative force and is insufficient to withstand summary judgment." Diaz v New York Downtown Hosp., 99 NY2d 542 (2002).

It is well-settled that expert testimony must be based on facts in the record personally known by the witnesses, and that an expert cannot reach a conclusion by assuming "material facts not supported by evidence." Cassano v Hagstrom, 5 NY2d 643 (1959). Expert opinions that are conclusory or unsupported by the record are insufficient to raise triable issues of fact. Aliosha v Ostad, 153 AD3d 591 (2d Dept 2017) (affirming the lower court's decision granting defendant's motion for summary judgment because plaintiff's unnamed expert was conclusory and speculative, and failed to address specific assertions made by the defendant's expert, especially those pertaining to proximate causation).

Furthermore, an expert affirmation in opposition to a motion for summary judgment must set forth the medically accepted standards of care or protocol and explain how it was departed from. Geffner v North Shore University Hosp., 57 AD3d 839 (2d Dept 2008). Such an affirmation must address all the key facts relied on by the defendant's expert. Geffner; see also Rebozo v Wilen, 41 AD3d 457 (2d Dept 2007). In opposition, a plaintiff must "submit material or evidentiary facts to rebut the defendant's prima facie showing that he or she was not negligent in treating the plaintiff." Langan v St. Vincent's Hosp. of NY, 64 AD3d 632 (2d Dept 2015).

Bills of Particulars

The plaintiff's bill of particulars and supplemental bill of particulars (NYSCEF Doc. Nos. 29 and 30) are replete with boilerplate and non-specific claims. The plaintiff specifically claims that SIUH employees were "negligent by failing to perform a right hip Inter [sic] Medullary (IM) [*4]nailing procedure when introducing some metallic implants inside the plaintiff's left [sic] hip; in failing to prevent any injury to the abdominal viscous during the right hip fracture surgery, as after this procedure, the patient developed abdominal distention; CT scans of such abdominal distention showed intraperitoneal free air with inflammatory changes centered in the left upper quadrant in the region of the gastrojejunostomy; failing to manage the risks to MICHAEL A.WINDLAND which caused him pain and suffering, emotional distress, and financial implications; In[sic] failing to perform unnecessary procedures such as the surgery to evacuate the free fluid and air from the abdomen, closure of the bowel perforation and a JP drain placement; the risks were inadequately managed, resulting in the harm of the plaintiff, MICHAEL A. WINDLAND, the defendant's negligence is evident."

The plaintiff claims that as a result of the alleged negligence he sustained a perforated "lower bowel" with complication; a perforated marginal ulcer; perforated viscus; placement of a JP drain; small fat-containing umbilical hernia; abdominal distention; injury to the jejunal anastomosis; need for JP drain placement; surgery to evacuate free air and fluid from the abdomen performed on August 17, 2021; and abdominal and hip pain.

Defendant's Contentions

SIUH contends that Dr. Hip-Flores and its staff did not depart from accepted standards of care regarding the treatment rendered to plaintiff and that any alleged injuries were not proximately caused by any alleged deviations from the standard of care.

The defendant's contentions are supported by the detailed expert affirmation of Calin S. Moucha, M.D. (NYSCEF Doc. No. 37) who supports his opinions with specific references to the record including deposition testimony and medical records.

Dr. Moucha opines: that the defendant's management of the plaintiff's care was at all times proper and appropriate and did not deviate from accepted standards of medical care; that plaintiff's injuries were not proximally caused by negligence by the defendant; that the perforated marginal ulcer and viscus sustained by the plaintiff was the result of plaintiff's history of bleeding marginal ulcers, gastric bypass surgery, history of smoking, the stress of the injury he sustained, and the stress of the surgery to repair his hip; that the perforated marginal ulcer at the gastrojejunostomy was timely identified, and an appropriate consult was obtained by Dr. Angela Glasnapp, who performed a successful emergent exploratory laparotomy to evacuate free air and fluid; that there is no conceivable way the perforated viscus/marginal ulcer at the gastrojejunostomy sustained by the plaintiff postoperatively was caused by the right hip IM nail procedure performed by Dr. Hip-Flores; that the location of the perforation was nowhere near the surgical field, and there was no mechanism for such a perforation to occur in that location during the procedure; that a marginal ulcer is an ulcer that develops at the margins of the gastrojejunostomy in the left upper quadrant of the abdominal cavity; that the perforation was anatomically distant from the location of the IM procedure, which was confirmed by the August 17, 2021 CT scan; and that the plaintiff's perforated marginal ulcer was not caused by the right hip IM nail procedure, but rather by a combination of factors, including the stress of the injury itself, the stress of the surgical repair of the fractured hip, plaintiff's history of smoking, plaintiff's history of bleeding marginal ulcers, and a 2004 gastric bypass surgery.

Through its submissions, SIUH has satisfied its burden of establishing prima facie entitlement to summary judgment. As such, the burden thereafter shifted to the plaintiff to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would [*5]require a trial of the action.

Plaintiff's Contentions

In opposition, plaintiff has supported his contentions with the expert affirmation of David A. Mayer, M.D. (NYSCEF Doc. No. 42) who supports his opinions with references to the record including deposition testimony and medical records.

Dr. Mayer has failed to lay the requisite foundation that he is qualified to offer opinions regarding the orthopedic surgical procedures and treatment rendered by Dr. Hip-Flores and the SIUH staff; or regarding the orthopedic surgical standards of care as they existed on August 13, 2021. Consequently, the submitted affirmation is of no probative value and the opinions set forth by Dr. Mayer cannot adequately refute the opinions of Dr. Moucha.

It is well settled that "while it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable." Tsimbler v Fell, 123 AD2d 1009 (2d Dept 2014). The Court in Tsimbler further held that "where a physician opines outside of his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered" (See also Shectman v Wilson, 68 AD3d 848 [2d Dept 2009]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]; Bjorke v Rubenstein, 53 AD3d 519 [2009]; Simpson v Edghill, 169 AD3d 737 [2d Dept 2019]; Feuer v Ng, 136 AD3d 704 [2d Dept 2016]). Accordingly, the plaintiffs have failed to refute the defendants' prima facie showing of entitlement to summary judgment as a matter of law. (see Behar v. Coren, 21 AD3d at 1046, 803 N.Y.S.2d 629).

Even if the plaintiffs' expert is deemed qualified to offer opinions regarding the orthopedic surgical procedures and treatment rendered by the defendant and the applicable orthopedic surgical standards of care, the stated opinions are conclusory, speculative and not based on evidence in the record, as noted below.

Dr. Mayer opines that on August 13, 2021, SIUH by Dr. Hip-Flores, while performing a right hip intramedullary nailing to repair the plaintiff's right intertrochanteric hip fracture he inadvertently and carelessly injured the plaintiff's bowel causing a perforated viscus (see NYSCEF Doc. No. 42). Dr Mayer further opines that: "[t]he very fact that the perforation happened immediately after the right hip surgery suggests that there was a proximate relationship between bowel perforation and right hip fracture surgery"; that Dr. Glassnap confusingly described the injury as a perforated marginal ulcer; that the injury was an iatrogenic perforation, not a marginal ulcer; that the perforation probably (emphasis added) happened during the right hip intramedullary nailing surgery performed by Dr. Hip-Flores; that the temporal relationship between the hip surgery performed on August 13, 2021 and the development of bowel perforation symptoms shortly thereafter strongly suggests that the perforation was causally related to the hip surgery; that the small bowel perforation occurred from technical errors during reaming and drilling prior to seating the gamma nail caused by Dr. Hip-Flores paying inadequate attention to intraoperative fluoroscopy guidance, failing to assess trajectory and depth control of his instruments and intrapelvic guidewire, causing misdirection and past pointing beyond the femoral head into the pelvis and abdominal cavity, perforating the underlying small bowel; and that the plaintiff's gastric pouch, which was originally located in the upper abdomen, dilated and expanded over thirty years to reach much lower in the abdomen, [*6]well within the reach of Dr. Hip-Flores misaligned and mistakenly deep surgical tools and intrabdominal guidewires.

The opinions expressed by Dr. Mayer are unequivocally speculative, conclusory and unsupported by the record. He does not adequately or appropriately explain the basis of his opinions and substitutes pure conjecture for objective facts and findings. For example, in her operative report (NYSCEF Doc. No. 35, page 265), Dr. Glassnap (the operating surgeon) clearly and unequivocally states that the postoperative diagnosis is "perforated marginal ulcer." Instead of accepting the findings of the surgeon who actually assessed the condition and performed surgery to repair it, Dr. Mayer substitutes his own opinion, with no objective basis in fact and contrary to the medical records, that the plaintiff suffered an iatrogenic perforation (caused by medical treatment), an opinion he provides no basis for. Expert opinions that are conclusory, speculative, or unsupported by the record evidence are insufficient to raise triable issues of material fact (see Kerrins v South Nassau Communities Hosp., 148 AD3d 795, 796 [2d Dept 2017]). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record. An expert opinion that is contradicted by the record cannot defeat summary judgment" (Lowe v Japal, 170 AD3d 701 [2d Dept 2019] [internal quotation marks and citations omitted]; see Forrest v Tierney, 91 AD3d 707 [2d Dept 2012]; Rebozo v Wilen, 41 AD3d 457 [2d Dept 2007]).

Consequently, for the reasons stated above, Dr. Mayer's opinions are not probative and are insufficient to defeat summary judgment. The plaintiff has failed to produce evidentiary proof in admissible form sufficient to establish issues of fact, which would require a trial of the action. Accordingly, the defendant's motion for summary judgment must be granted.

Lastly, for the first time in opposition to the defendant's motion, the plaintiff and his expert have improperly raised the theory that "[d]uring intramedullary nailing procedures for hip fractures, particularly those utilizing fracture tables with positioning and traction, there is potential for pressure-related injury or direct trauma to abdominal organs. The standard of care requires the operating surgeon and surgical team to properly position and secure the patient to avoid excessive pressure on the abdomen, to monitor for signs of abdominal distension during the procedure, and to take appropriate precautions to prevent injury to adjacent structures, including abdominal organs." See NYSCEF Doc. No. 42, paragraph 20. Dr. Mayer further states that "[i]n the case of Mr. Windland, Dr. Jules David Hip-Flores failed to exercise due care in preventing injury to the abdominal viscera during the right hip fracture surgery, which constitutes a departure from the standard of care." There is no claim in the bill of particulars or supplemental bill of particulars that the defendants improperly positioned the plaintiff during the subject surgery or that abdominal pressure was not properly alleviated.

It is well-settled that a plaintiff cannot defeat a summary judgment motion by asserting new theories of liability for the first time in opposition papers. Atkins v Beth Abraham Health Services, 20 N.Y.S 3d 33 (1st Dept 2015). The Second Department has consistently held that a plaintiff may not assert a new theory of liability in opposition to a summary judgment motion where the plaintiff had knowledge of the relevant facts and offers no explanation for her delay in presenting the new theory of liability. Langan v St. Vincent's Hosp. of New York, 64 AD3d 632 (2d Dept 2009); Michel v Long Island Jewish Medical Center, 125 AD3d 945 (2d Dept 2015); Sacino v Warwick Val. Cent. School Dist., 138 AD3d (2d Dept 2013); Beery v City of New York, 111 AD3d 5 (2d Dept 2013).

Where a plaintiff, in opposing a motion for summary judgment in a medical malpractice action, does not address the theories of liability alleged in plaintiff's bill of particulars, but instead asserts new, alternative theories of liability, the affirmation fails to raise a triable issue of material fact sufficient to overcome the movant's summary judgment motion. Dolan v Halpern, 73 AD3d 1117, (2d Dept 2010). See also, Troia v City of New York, 162 AD3d 1089 (2d Dept 2018) (a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, a new theory of liability that was not pleaded in the complaint or bill of particulars); Golubov v Wolfson, 22 AD3d 635 (2d Dept 2005) (granting the defendant's motion for summary judgment as plaintiff improperly asserted a new theory of liability for the first time in opposition to said motion); Gustavsson v County of Westchester, 264 AD2d 408 (2d Dept 1999) (holding that plaintiff could not rely on a new theory of liability to defeat the defendant's motion for summary judgment); Gyarbin v Concord Limousine, Inc., 139 AD3d 672 (2d Dept 2016); Dolan v Halpern, 73 AD3d 1117 (2d Dept 2010). Accordingly, the defendant had no burden to refute any claim related to positioning.

Informed Consent

The plaintiff's bills of particulars reference a claim that the defendant failed to obtain his informed consent for the subject surgery. However, plaintiffs failed to plead a cause of action sounding in lack of informed consent in his verified complaint (NYSCEF Doc. No. 1). It is well settled that a claim for lack of informed consent is a distinct and separate cause of action from one premised on medical malpractice or negligence. See Kelapire v Kale, 189 AD3d 1197, 1198 (2d Dept. 2020); Jolly v Russell, 203 AD2d 527, 528- 29 (2d Dept. 1994). Accordingly, as a result of the plaintiff's failure to plead lack of informed consent as a separate cause of action, any claims based on an alleged lack of informed consent are dismissed. See Rizzo v Estate of Polifrone, 192 AD3d 564, 565 (1st Dept. 2021).

Negligent Hiring, Retention, Training and Supervision

Negligent hiring is a very narrow claim brought directly against an employer for the employer's alleged negligence in choosing to hire a dangerous individual with dangerous propensities, as opposed to holding the employer vicariously liable for the acts of employees. See Rodriguez v United Transp. Co., 246 AD2d 178 (1st Dept 1998). It is a cause of action to hold the employer liable for its own negligence in hiring an employee known to have such propensities and behavior. The employer's negligence lies in his having placed the employee in a position to cause foreseeable harm, harm which would most probably have been spared the injured party had the employer taken reasonable care in making decisions respecting the hiring and retention of his employees. See Detone v Bullit Courier Serv., Inc., 140 AD2d 278 (1st Dept 1988). Moreover, there is no common-law duty to institute specific procedures for hiring employees unless the employer knows of facts that would lead a reasonably prudent person to investigate the prospective employee. Maldonado v Allum, 208 AD3d 470 (2d Dept 2022); Yildiz v PJ Food Serv., Inc., 82 AD3d at 972 (2d Dept 2011); Kenneth R.

A claimant states a cause of action for negligent hiring and retention by adequately alleging that the "employer knew or should have known of the employee's propensity for the conduct which caused the injury" (Bumpus v New York City Tr. Auth., 47 AD3d 653 [2d Dept 2008] [internal quotation marks and citation omitted]; see also Jackson v New York Univ. Downtown Hosp., 69 AD3d 801 [2d Dept 2010]; Kenneth R. v Roman Catholic Diocese of [*7]Brooklyn, 229 AD2d 159 [2d Dept 1997], cert denied 522 US 967 [1997], lv dismissed 91 NY2d 848 [1997])

Likewise, stating a claim for negligent supervision and negligent training requires that the employer must have "kn[own] or should have known of the employee's propensity for the conduct which caused the injury" (Kenneth R., 229 AD2d at 161). See Fuller v Family Servs. of Westchester, Inc., 209 AD3d 983 (2d Dept 2022). Prevailing on a negligent supervision claim, though, requires a claimant to prove that the defendant knew or should have known about his subordinate's propensity for the conduct that caused the plaintiff's injury (see e.g. Mirand v City of New York, 84 NY2d 44, 49 [1994]; Jackson v New York Univ. Downtown Hosp., 69 AD3d at 801; Bumpus, 47 AD3d at 654; Peter T. v Children's Vil., Inc., 30 AD3d 582, 586 [2006]; Kenneth R., 229 AD2d at 161).

A review of the complaint reveals that the plaintiff has failed to properly set forth such claims by not alleging that SIUH knew or should have known of any employee's propensity for the conduct which caused the injury. Additionally, the plaintiff has failed to establish in the record with any admissible evidence that any employee of SIUH had a propensity to administer negligent care and treatment or commit any of the alleged negligent acts. In a most conclusory manner and without any explanation, Dr. Mayer opines (NYSCEF Doc. No. 42, paragraph 7) that SIUH departed from accepted standards "by negligently credentialing and granting operating privileges to Dr. Jules Hip-Flores." Consequently, all claims against SIUH sounding in negligent hiring, retention, training and supervision are dismissed.

The court has considered any remaining contentions of the parties and finds them to be unpersuasive.

Accordingly, it is hereby,

ORDERED, the defendant's summary judgment motion is granted in its entirety; and it is further,

ORDERED, that the Clerk enter Judgment for the defendant; and it is further,

ORDERED, that any additional requests for relief are hereby denied.

Dated: April 3, 2026

ENTER

Hon. Charles M. Troia