Supreme Court, Westchester County

Decided on May 19, 2026

Index No. 63291/2019

Diane M. Clerkin, J.

[*1]

The following papers were considered on the motion (Seq. No. 3) by Defendant Montefiore Medical Center s/h/a Montefiore Medical Center and Montefiore Medical Center d/b/a Montefiore Home Care ("Montefiore") for summary judgment dismissing the Complaint as against Montefiore pursuant to CPLR 3212:

PAPERS NYSCEF DOC. NOS.:

Notice of Motion, Affirmation of Julia R. Hornstein, Esq.,

Exhibits A-R, Affirmation of Michael Perskin, M.D.,

Affirmation of Sarah Lebovits, R.N. 204-223, 247

Affirmation of Ronald J. Katter, Esq., Exhibits 1-2

Affirmation of Aaron S. Blom, D.O.

Memorandum of Law in Opposition 238-241

Reply Affirmation of Julia R. Hornstein, Esq. 249

The following papers were considered on the motion (Seq. No. 4) by Defendant Jewish Home Life Care, Harry and Jeanette Weinberg Campus, Bronx ("Jewish Home") for summary judgment dismissing the Complaint as against Jewish Home pursuant to CPLR 3212:

PAPERS NYSCEF DOC. NOS.:

Notice of Motion, Affirmation of Susan S. Formosa, Esq.,

Exhibits A-J, Affirmation of Lawrence N. Diamond, M.D.,

Statement of Material Facts 224-237

Affirmation of Ronald J. Katter, Esq., Exhibits 1-2

Affirmation of Aaron S. Blom, D.O.

Memorandum of Law in Opposition

Response to Statement of Material Facts 242-246

Reply Affirmation of Susan S. Formosa, Esq. 250

Upon the foregoing papers and all prior papers and proceedings in this action, the two motions, which are consolidated for purposes of deliberation and determination, are decided as follows.

BACKGROUND

Plaintiff Yolanda McDonald ("Plaintiff") brings this action for, inter alia, medical malpractice and negligence, in her capacity as Administrator of the Estate of Jacqueline McDonald (the "Decedent"). In sum and substance, the Complaint alleges that the Decedent was a patient of Montefiore between December 16, 2014 and December 23, 2014 and again from February 3, 2015 to February 25, 2015 (NYSCEF Doc. No. 2). Plaintiff alleges that due to Montefiore's negligent care and treatment of the Decedent's various medical ailments, the Decedent developed pressure ulcers, which progressed to Stage III pressure ulcers, which are advanced tissue injuries reflecting full-thickness skin loss with damage to or necrosis of subcutaneous tissue (id.). Based upon that central allegation as detailed in the Complaint, [*2]Plaintiff asserts against Montefiore a first and third cause of action for medical malpractice as well as a second, fourth, seventh and eighth cause of action for negligence (id.). Plaintiff also alleges in the Complaint that the Decedent was a resident of the nursing facility operated by Jewish Home between December 23, 2014 and January 14, 2015 (id.). She alleges that Jewish Home was similarly negligent in its care and treatment of the Decedent, which caused and exacerbated the Decedent's pressure ulcers (id.). Plaintiff asserts against Jewish Home a fifth cause of action for violation of New York Public Health Law §§ 2801-D and 2803-C and a sixth cause of action for negligence (id.).

Montefiore furnished an Answer in which it, inter alia, denied the Complaint's material allegations and asserted ten affirmative defenses in response thereto (NYSCEF Doc. No. 89). Jewish Home also furnished an Answer in which it, inter alia, denied the material allegations of the Complaint and raised 14 affirmative defenses in response thereto (NYSCEF Doc. No. 100).

This action proceeded through discovery, and the Court (Malone, J.) issued a Trial Readiness Order was issued on September 24, 2024 (NYSCEF Doc. No. 140). The Trial Readiness Order directed Plaintiff to file a Note of Issue within 20 days thereof, and further provided that any summary judgment motions be filed within 60 days following the filing of the Note of Issue (id.). On October 11, 2024, Plaintiff timely filed a Note of Issue and Certificate of Readiness for Trial (NYSCEF Doc. No. 141).

On December 10, 2024, Montefiore and Jewish Home each separately and timely moved (Seq. Nos. 1-2) for summary judgment dismissing the Complaint as against them pursuant to CPLR 3212 (NYSCEF Doc. Nos. 143-174). However, Plaintiff thereafter advised the Court that the Decedent had passed away on November 26, 2024 (NYSCEF Doc. No. 81). As such, the action was automatically stayed due to the Decedent's passing and was transferred to the Stayed Case Part, with Montefiore and Jewish Home withdrawing their respective summary judgment motions without prejudice (NYSCEF Doc. Nos. 200, 201).

Once the automatic stay due to the Decedent's passing had been lifted, the action was transferred to this Court (NYSCEF Doc. No. 202). This Court then promptly issued a briefing schedule for Montefiore and Jewish Home's anticipated re-filing of their respective summary judgment motions (NYSCEF Doc. No. 203).

On March 23, 2026, Montefiore (Seq. No. 3) and Jewish Home (Seq. No. 4) each timely moved for summary judgment dismissing the Complaint as against them pursuant to CPLR 3212 (NYSCEF Doc. Nos. 204-237, 247). Plaintiff opposed both motions (NYSCEF Doc. Nos. 238-245); Montefiore and Jewish Home each submitted a reply in further support of their respective motions (NYSCEF Doc. Nos. 249-250); and the motions were deemed to be fully submitted on May 1, 2026.

CONTENTIONS

In support of its summary judgment motion, Montefiore submits an expert affirmation from Michael Perskin, M.D. ("Dr. Perskin") (NYSCEF Doc. No. 206). Dr. Perskin, who is a physician specializing in internal medicine and geriatric medicine, avers that it is his opinion, with a reasonable degree of medical certainty, that Montefiore did not commit any departures [*3]from good and accepted standards of care that caused or contributed to the Decedent's alleged injuries arising from pressure ulcers. Specifically, he opines that the Decedent's ulcers were not formed during her stay at Montefiore and that rather, she already presented with a Stage III pressure ulcer at the time of her admission. Dr. Perskin opines that the personnel at Montefiore did not depart from good and accepted medical practice in their care and treatment of the Decedent, and that the development and progression of her pressure ulcers were an inevitable consequence of her extremely poor overall clinical picture and multiple co-morbidities. Dr. Perskin opines that Montefiore's care of the Decedent, including all wound care prevention and progression care, was entirely appropriate and did not cause or contribute to any of the claimed injuries.

Montefiore also furnishes an expert affirmation from Sarah Lebovits, R.N. ("Lebovits"), who is a registered nurse and is board certified in, inter alia, wound care (NYSCEF Doc. No. 207). Lebovits avers that Montefiore did not commit any departures from good and accepted standards of care that caused or contributed to the Decedent's claimed injuries. She opines that Plaintiff's allegation that Montefiore failed to comply with the standard of care and caused or contributed to the progression of the Decedent's pressure ulcers is contradicted by medical records and lacks merit. Lebovits further opines with a reasonable degree of nursing certainty that Montefiore did not depart from good and accepted nursing care in its treatment of the Decedent, and that the development and progression of her pressure ulcers were an inevitable consequence of the Decedent's poor overall health, multiple co-morbidities, and the Decedent's daughter's failure to provide consistent and necessary at-home care. Lebovits opines that Montefiore's wound care and progression care were entirely appropriate and did not cause or contribute to any of the Decedent's claimed injuries.

Montefiore further submits an affirmation from its counsel, Julia R. Hornstein, Esq. ("Hornstein"), which sets forth Montefiore's legal arguments in support of its motion (NYSCEF Doc. No. 247). Based upon the Perskin Affirmation, the Lebovits Affirmation, and the documentary evidence annexed to counsel's affirmation,^FN1 Hornstein avers that Montefiore has established a prima facie entitlement to summary judgment dismissing the Complaint against it pursuant to CPLR 3212. In particular, Hornstein avers that the first and third causes of action for medical malpractice and the second, fourth, seventh and eighth causes of action for negligence should be dismissed because Montefiore did not depart from good and accepted practice in its care and treatment of the Decedent in any manner that was a substantial factor in causing the Decedent's alleged injuries arising from pressure ulcers.

In support of its summary judgment motion, Jewish Home furnishes an expert affirmation from Lawrence N. Diamond, M.D. ("Dr. Diamond"), who is a physician specializing in family medicine and geriatric medicine (NYSCEF Doc. No. 227). Dr. Diamond opines to a reasonable degree of medical certainty that the treatment provided to the Decedent by Jewish Home was appropriate and within the standard of care and neither caused nor contributed to any alleged injuries, including the development and progression of pressure ulcers. Dr. Diamond further opines that although the risk of the development of a pressure ulcer and the risk of failing to maintain skin integrity can never completely be eliminated, Jewish Home's medical [*4]interventions and treatment, including weekly wound care rounds, reflected an effort to mitigate the Decedent's risk factors. Dr. Diamond also opines that Jewish Home did not violate New York Public Health Law §§ 2801-D and 2803-C, as it did not show any reckless disregard for the Decedent's rights or safety, and indeed timely and appropriately examined the Decedent for wounds and risk of developing pressure ulcers and implemented an appropriate care plan. Dr. Diamond opines with a reasonable degree of medical certainty that Jewish Home treated the Decedent within the standards of good and accepted medical practice, did not deviate from such standards, and that Jewish Home neither caused nor contributed to the Decedent's alleged injuries.

Jewish Home also submits an affirmation from its counsel, Susan S. Formosa, Esq. ("Formosa"), which sets forth Jewish Home's legal arguments in support of its motion (NYSCEF Doc. No. 225). Based upon the Diamond Affirmation and the documentary evidence annexed to counsel's affirmation,^FN2 Formosa avers that Jewish Home has established prima facie entitlement to summary judgment dismissing the Complaint against it pursuant to CPLR 3212. Specifically, Formosa avers that the sixth cause of action for negligence should be dismissed as a matter of law because the care provided by Jewish Home to the Decedent was appropriate and within the standard of care. Formosa further avers that the fifth cause of action for violation of New York Public Health Law §§ 2801-D and 2803-C, which seeks punitive damages, should be dismissed as a matter of law because the care provided by Jewish Home to the Decedent was appropriate, within the standard of care, and did not deprive the Decedent of her rights. Formosa also avers that alternatively this action should be dismissed pursuant to CPLR 1021 due to Plaintiff's failure to timely appoint an Administrator of the Decedent's Estate, as the related delay greatly prejudiced Jewish Home.

In opposition to both summary judgment motions, Plaintiff furnishes an expert affirmation from Aaron S. Blom, D.O. ("Dr. Blom"), who is a physician specializing in wound management (NYSCEF Doc. Nos. 239, 243). Dr. Blom opines to a reasonable degree of medical certainty that both Montefiore and Jewish Home failed to meet the established standard of care in their physician-led diagnostic, therapeutic and care planning responsibilities for the Decedent. He opines that during the times that the Decedent was under the care of Montefiore and Jewish Home, there were critical instances where the Decedent's worsening skin breakdown, malnutrition, and dehydration demanded physician intervention, interdisciplinary coordination and order modification, which Montefiore and Jewish Home either failed to implement or implemented inadequately. Dr. Blom further opines that the Decedent's pressure ulcers, which were a significant and material component of her pain, suffering, and decline, and their persistence and progression were worsened by the departures of Montefiore and Jewish Home from the standard of care during the times in 2014 and 2015 that the Decedent was in their care. Dr. Blom also opines that Montefiore's discharge of the Decedent fell short of the standard of care by failing to realistically address the feasibility of complex wound management and the limitations of caregiver support, particularly in light of the known barriers of the Decedent's home environment, which left the Decedent at high risk for preventable deterioration and ongoing complications. Dr. Blom further opines that Jewish Home violated New York Public [*5]Health Law §§ 2801-D and 2803-C in its treatment of the Decedent by Jewish Home's failure to implement preventative measures, maintain hygiene and nutrition, and provide adequate turning and repositioning of the Decedent, and by its failure to escalate care in response to the Decedent's worsening and non-healing Stage III pressure ulcers. Dr. Blom concludes by opining that the Decedent's injuries were foreseeable, avoidable, and directly attributable to the failure by Montefiore and Jewish Home to provide timely, appropriate, and consistent pressure ulcer management to the Decedent, who was a patient known to be at the highest risk for deterioration.

Plaintiff also furnishes an affirmation from her counsel, Ronald J. Katter, Esq. ("Katter") (NYSCEF Doc. Nos. 238, 242). The purpose of Katter's affirmation is to attach copies of documentary evidence, including, inter alia, copies of deposition transcripts, medical records from both Montefiore and Jewish Home, and photographs of the Decedent's pressure ulcer wounds (NYSCEF Doc. Nos. 211, 230-233, 238-240, 243-244).

Plaintiff's legal arguments in opposition to both summary judgment motions are set forth in a memorandum of law (NYSCEF Doc. Nos. 241, 245). Plaintiff first contends that Montefiore and Jewish Home's respective motions should be denied entirely, as Plaintiff has furnished Dr. Blom's expert medical opinion. Plaintiff asserts that Dr. Blom in his lengthy and detailed expert affirmation has identified specific departures from accepted standards of care, concrete violations of statutorily protected resident rights, and has established a direct causal link between the numerous failures of Montefiore and Jewish Home and the Decedent's preventable suffering and decline. Plaintiff further argues that the record on these motions, including deposition testimony, medical records, and photographic evidence, is marked by material inconsistencies, omissions and documentation gaps that conclusively reflect and demonstrate the presence of triable issues of fact that require the denial of summary judgment. Plaintiff contends that because at a bare minimum there exist triable issues of fact concerning the care and treatment rendered to the Decedent by Montefiore and Jewish Home, summary judgment is unwarranted regarding the first and third causes of action for medical malpractice, the second, fourth, sixth, seventh and eighth causes of action for negligence, and the fifth cause of action for violation of New York Public Health Law §§ 2801-D and 2803-C. Accordingly, Plaintiff submits that both Montefiore's summary judgment motion (Seq. No. 3) and Jewish Home's summary judgment motion (Seq. No. 4) should be denied in their entirety.

In further support of its motion, Montefiore furnishes a reply affirmation from Hornstein (NYSCEF Doc. No. 249). Hornstein avers that Montefiore in its moving submissions, which include expert affirmations from Dr. Perskin and Lebovits, established prima facie entitlement to summary judgment dismissing the Complaint as against it pursuant to CPLR 3212. Hornstein further avers that Plaintiff's expert, Dr. Blom, fails in his expert affirmation to specifically refute each and every opinion set forth by Dr. Perskin and Lebovits, such that those opinions should be accepted as facts. Hornstein avers that, in any event, Dr. Blom's expert affirmation fails to raise a triable issue of fact concerning Montefiore, such that all claims asserted against Montefiore should be dismissed pursuant to CPLR 3212.

In further support of its motion, Jewish Home submits a reply affirmation from Formosa (NYSCEF Doc. No. 250). Formosa avers that Jewish Home's moving submissions, including the Diamond Affirmation, established its prima facie entitlement to summary judgment dismissing the Complaint against it pursuant to CPLR 3212. Formosa avers that to the extent that Dr. Blom's expert affirmation neglects to expressly and directly address each and every factual assertion in Dr. Diamond's expert affirmation, such assertions should be accepted as facts. [*6]Formosa further avers that Dr. Blom's expert opinion is insufficient as a matter of law to defeat Jewish Home's summary judgment motion, as his affirmation is both conclusory and speculative. Formosa also avers that Plaintiff in her opposition neglected to squarely address Jewish Home's argument that this action should be dismissed pursuant to CPLR 1021 due to Plaintiff's failure to timely appoint an Administrator of the Decedent's Estate and, as such, the action should be dismissed pursuant to CPLR 1021.

ANALYSIS

The legal standards to be applied in evaluating a motion for summary judgment pursuant to CPLR 3212 are well-settled. "Summary judgment is a drastic remedy, to be granted only where the moving party has 'tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact' and then only if, upon the moving party's meeting of this [prima facie] burden, the non-moving party fails 'to establish the existence of material issues of fact which require a trial of the action' " (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

"On a motion for summary judgment, facts must be viewed 'in the light most favorable to the non-moving party' " (Vega, 18 NY3d at 503, quoting Ortiz v Varsity Holdings, LLC, 18 NY3d 335, 339 [2011]). "[S]ummary judgment is appropriate 'where only one conclusion may be drawn from the established facts' " (Jones v St. Rita's R.C. Church, 187 AD3d 727, 729 [2d Dept 2020], quoting Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]), or where a cause of action and/or the type of damages sought "fails as a matter of law" (Ramos v Howard Indus., Inc., 10 NY3d 218, 224 [2008]; see also M.V.B. Collision, Inc. v Allstate Ins. Co., 187 AD3d 881, 882 [2d Dept 2020]).

With respect to Montefiore's motion (Seq. No. 3) seeking summary judgment dismissing Plaintiff's medical malpractice and negligence claims against it, "[t]he essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury" (Louz v Fatiha, 242 AD3d 1189, 1190 [2d Dept 2025], quoting Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 AD3d 1426, 1427 [2d Dept 2020]; accord Rico v New York Methodist Hosp., 242 AD3d 787, 788 [2d Dept 2025]).^FN3

"A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff's injuries" (Gardiola v Park, 229 AD3d 602, 603 [2d Dept 2024]) (internal quotation marks and citations omitted). "In order to sustain its prima facie burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's complaint and bill of particulars" (Danziger v Mayer, 236 AD3d 755, 758 [2d Dept 2025]) (internal quotation marks and citations omitted). "Once the defendant meets its prima facie burden, the plaintiff must demonstrate in opposition the [*7]existence of a triable issue of fact as to the elements with respect to which the defendant has met its initial burden" (Roy v Lent, 219 AD3d 525, 525-526 [2d Dept 2023] [internal quotation marks and citations omitted]).

Having reviewed the parties' submissions, the Court determines that Montefiore has established a prima facie entitlement to summary judgment dismissing Plaintiff's medical malpractice and negligence claims against it pursuant to CPLR 3212. By way of the Perskin Affirmation, the Lebovits Affirmation, and the documentary evidence annexed to the Hornstein Affirmation, including copies of the deposition transcripts of Plaintiff and various Montefiore personnel, as well as copies of Montefiore's various medical records for the Decedent, Montefiore has established, prima facie, that it did not depart from the accepted standard of care in its treatment of the Decedent and that, in any event, Montefiore did not cause or contribute to the Decedent's alleged injuries arising from pressure ulcers (see NYSCEF Doc. Nos. 205-223).

Specifically, Dr. Perskin has set forth an expert affirmation in which he opines, inter alia, that: (1) the personnel at Montefiore did not depart from good and accepted medical practice in their care and treatment of the Decedent; (2) the development and progression of the Decedent's pressure ulcers were an inevitable consequence of her extremely poor overall clinical picture and multiple co-morbidities; and (3) Montefiore's care of the Decedent, including all wound care prevention and progression care, was entirely appropriate and did not cause or contribute to any of the claimed injuries (see NYSCEF Doc. No. 206). Moreover, Lebovits in her expert affirmation opines, inter alia, that: (1) Montefiore did not depart from good and accepted nursing care in its treatment of the Decedent; and (2) the development and progression of the Decedent's pressure ulcers were an inevitable consequence of the Decedent's poor overall health, multiple co-morbidities, and the Decedent's daughter's failure to provide consistent and necessary at-home care (see NYSCEF Doc. No. 207).

Accordingly, by way of the Perskin Affirmation, the Lebovits Affirmation, and the documentary evidence annexed to counsel's affirmation, Montefiore has established prima facie entitlement to summary judgment dismissing Plaintiff's first and third causes of action for medical malpractice and the second, fourth, seventh and eighth causes of action for negligence pursuant to CPLR 3212 (see NYSCEF Doc. Nos. 205-223; see also Rico, 242 AD3d at 789 [holding that "(t)he defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint through the submission of an affirmation of their expert . . . The expert opined, based upon his review of the medical records, the deposition testimony, and the pleadings, that the defendants did not depart from accepted medical practice and did not cause or contribute to the (plaintiff's) injuries"]; Corujo v Caputo, 224 AD3d 729, 732 [2d Dept 2024] [finding that "the defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint . . . through the submission of an affirmation from their expert (who) opined, based upon his review of the medical records, the deposition testimony, and the pleadings, that (defendant) did not depart from accepted medical practice and that, in any event, he did not cause or contribute to the plaintiff's injuries"]; Pettway v Vorobyeva, 202 AD3d 1116, 1117 [2d Dept 2022] [holding that "the defendant established her prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting the expert affirmation of a board-certified obstetrician and gynecologist, who opined . . . that the defendant did not depart from accepted medical practice and that, in any event, she did not cause or contribute to the plaintiff's injury"]).

With respect to Jewish Home's motion (Seq. No. 4) seeking summary judgment [*8]dismissing Plaintiff's claim for negligence and her claim alleging a violation of New York Public Health Law §§ 2801-D and 2803-C,^FN4 Jewish Home has similarly established prima facie entitlement to summary judgment. Specifically, through the Diamond Affirmation and the documentary evidence annexed to the Formosa Affirmation, including copies of the deposition transcripts of Plaintiff and the Decedent's daughter, as well as copies of Jewish Home's various medical records for the Decedent, Jewish Home has established, prima facie, that it did not cause or contribute to the Decedent's alleged pressure ulcer injuries and did not deprive the Decedent of any right or benefit in violation of New York Public Health Law §§ 2801-D and 2803-C (see NYSCEF Doc. Nos. 225-236).

In particular, Dr. Diamond has set forth an expert affirmation in which he opines, inter alia, that: (1) the treatment provided to the Decedent by Jewish Home was appropriate and within the standard of care and neither caused nor contributed to any alleged injuries, including the development and progression of pressure ulcers; (2) Jewish Home's medical interventions and treatment, including weekly wound care rounds, reflected an effort to mitigate the Decedent's risk factors; and (3) Jewish Home did not violate New York Public Health Law §§ 2801-D and 2803-C, as it did not show any reckless disregard for the Decedent's rights or safety, and indeed timely and appropriately examined the Decedent for wounds and risk of developing pressure ulcers and implemented an appropriate care plan (see NYSCEF Doc. No. 227).

As such, Jewish Home has established prima facie entitlement to summary judgment dismissing as a matter of law Plaintiff's fifth cause of action for violation of New York Public Health Law §§ 2801-D and 2803-C and sixth cause of action for negligence (see NYSCEF Doc. Nos. 225-236; see also Johnson v Harlem Hosp., 238 AD3d 412, 414 [1st Dept 2025] [finding that the defendant established prima facie entitlement to summary judgment by furnishing an expert affirmation that "opined that defendants did not proximately cause the decedent's pressure ulcer-related injuries because these were unavoidable in view of her comorbidities"]; Craig v St. Barnabas Nursing Home, 129 AD3d 643, 644 [1st Dept 2015] [holding that "(i)n this action alleging violations of Public Health Law §§ 2801-d and 2803-c, as well as causes of action for . . . negligence . . . the nursing home made a prima facie showing of its entitlement to judgment as a matter of law by submitting, among other things, its expert affirmation and medical records" and stating that "(t)he medical records support the nursing home's expert's opinion that decedent's skin ulcers and other complications were unavoidable and the result of preexisting conditions, as well as other risk factors"]; Negron v St. Barnabas Nursing Home, 105 AD3d 501, 501 [1st Dept 2013] [finding that in a "negligence action, defendants made a prima facie showing of their entitlement to judgment as a matter of law by submitting, among other things, their expert affirmation and medical records" where "(t)he medical records support defendants' expert's opinion that decedent's chronic skin ulcers . . . were the unavoidable result of his preexisting, chronic conditions, as well as other risk factors"]; Marksamer v Engel Burman Senior Hous. at Massapequa, LLC, 95 AD3d 963, 964 [2d Dept 2012] [holding that the defendant nursing home "established prima facie that it did not breach any duty of care owed to [*9]the decedent" such that it was entitled to summary judgment dismissing plaintiff's negligence claim as a matter of law]).

However, in opposition to the respective prima facie showings made by Montefiore and Jewish Home, Plaintiff has cited the presence of triable issues of fact that require the denial of both summary judgment motions. Indeed, it is well-settled that where, as here, the party opposing summary judgment furnishes a conflicting medical expert opinion in opposition (see Gardiola, 229 AD3d at 603 ["(s)ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions"]; accord Lopresti v Alzoobaee, 217 AD3d 759, 761 [2d Dept 2023]; Feinberg v Feit, 23 AD3d 517, 519 [2d Dept 2005]).

Specifically, in opposition to Montefiore's and Jewish Home's respective prima facie showings of entitlement to summary judgment, Plaintiff has furnished the Blom Affirmation, in which Dr. Blom avers that it is his opinion within a reasonable degree of medical certainty that both Montefiore and Jewish Home failed to meet the established standard of care in their physician-led diagnostic, therapeutic, and care planning responsibilities for the Decedent (see NYSCEF Doc. No. 239). In particular, Dr. Blom avers in detail as to why he believes that during the times that the Decedent was under the care of Montefiore and Jewish Home, there were critical instances where the Decedent's worsening skin breakdown, malnutrition, and dehydration demanded physician intervention, interdisciplinary coordination, and order modification, which Montefiore and Jewish Home either failed to implement or implemented inadequately. Dr. Blom also opines that the Decedent's pressure ulcers were worsened by the departures of Montefiore and Jewish Home from the standard of care during the times in 2014 and 2015 that the Decedent was in their care. Moreover, Dr. Blom opines that Montefiore's discharge of the Decedent fell short of the standard of care by failing to realistically address the feasibility of complex wound management and the limitations of caregiver support, particularly in light of the known barriers of the Decedent's home environment, which left the Decedent at high risk for preventable deterioration and ongoing complications. Dr. Blom's expert affirmation also opines that Jewish Home violated New York Public Health Law §§ 2801-D and 2803-C in its treatment of the Decedent by Jewish Home's failure to implement preventative measures, maintain hygiene and nutrition, and provide adequate turning and repositioning of the Decedent and by its failure to escalate care in response to the Decedent's worsening and non-healing Stage III pressure ulcers. In direct contradiction of the expert opinions rendered by Dr. Perskin, Lebovits, and Dr. Diamond, Dr. Blom opines that the Decedent's injuries were foreseeable, avoidable, and directly attributable to the failure by Montefiore and Jewish Home to provide timely, appropriate, and consistent pressure ulcer management to the Decedent, who was a patient known to be at the highest risk for deterioration.

Accordingly, based upon the parties' furnishing of conflicting medical expert opinions concerning the care and treatment of the Decedent, summary judgment is unwarranted with respect to Plaintiff's medical malpractice claims (see Swiatocha v Koenigsdorf, 241 AD3d 1595, 1596-1597 [2d Dept 2025] [noting that "(s)ummary judgment is generally not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" and holding that summary judgment was unwarranted where "the plaintiff's expert affirmation raised triable issues of fact as to whether the PBMC defendants departed from accepted medical practice and whether their alleged departures were a proximate cause of the plaintiff's injuries"]; Delia v Wieder, 236 AD3d 857, 859 [2d Dept 2025] [affirming the Supreme Court's denial of [*10]summary judgment and stating that "(i)n opposition, however, the plaintiffs raised triable issues of fact as to whether Wieder departed from accepted medical practice and whether such departure proximately caused the injured plaintiff's injuries" where "(t)he plaintiffs' expert opined, inter alia, that Wieder failed to appropriately diagnose and treat the injured plaintiff's infection"]; Armond v Strangio, 227 AD3d 758, 759-760 [2d Dept 2024] [holding that summary judgment dismissing a medical malpractice claim was unwarranted and stating that "(i)n opposition, however, the plaintiffs' expert affidavit raised triable issues of fact as to whether Henry departed from good and accepted medical practice by, among other things, failing to complete a proper orthopedic consult of the decedent and whether those departures were a proximate cause of the decedent's alleged injuries. Where, as here, experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution"]).

Furthermore, Plaintiff's submission of the Blom Affirmation, as well as her submission of documentary evidence including, inter alia, copies of deposition transcripts, medical records from both Montefiore and Jewish Home, and photographs of the Decedent's pressure ulcer wounds, also reflects the presence of triable issues of fact that require the denial of summary judgment regarding Plaintiff's negligence claims and her claims for violation of New York Public Health Law §§ 2801-D and 2803-C (see NYSCEF Doc. Nos. 211, 230-233, 238-240, 243-244).

Here, the parties have each furnished sworn expert submissions that support their respective positions in this matter, and Plaintiff's expert submission directly contradicts the submissions by Montefiore and Jewish Home (see NYSCEF Doc. Nos. 206, 207, 227, 239, 243). This differing interpretation of the facts is clearly a question of material fact as to liability and causation that must be answered by a jury (see Frye v Montefiore Med. Ctr., 70 AD3d 15, 25 [1st Dept 2009] [stating that "(r)esolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury"]).

It is without question that the Decedent suffered from pressure ulcers during her stay at both Montefiore and Jewish Home, but the course of the Decedent's care and treatment thereof is a question of fact that cannot be resolved in the context of this summary judgment motion (see Chillious v Edouard, 234 AD3d 737, 740-741 [2d Dept 2025] [holding that summary judgment was not warranted where "the plaintiff raised triable issues of fact as to whether the alleged departures in failing to timely and properly investigate, diagnose, and treat the decedent's conditions proximately caused the decedent's injuries"]; Rosario v Our Lady of Consolation Nursing & Rehabilitation Care Ctr., 186 AD3d 1426, 1428 [2d Dept 2020] [stating that "the affirmation of the plaintiff's expert, reasonably construed in a light most favorable to the plaintiff, was not speculative or conclusory, but rather sufficiently raised triable issues of fact as to whether (defendant) departed from accepted medical practice and whether his alleged departures were a proximate cause contributing to the decedent's (injuries)"]; Sims v Jamaica Hosp. Nursing Home Co., Inc., 2024 NY Misc. LEXIS 16181, **10-11 [Sup. Ct. Queens Cty. Mar. 6, 2024] [finding that summary judgment was not warranted dismissing a claim for violation of Public Health Law § 2801-d where "plaintiff's expert affidavit raises triable issues of fact as to whether plaintiff's injury was caused by plaintiff's pre-existing conditions or defendant's alleged negligent care or omissions"]).

Therefore, without making credibility determinations or opining as to whether Plaintiff [*11]may ultimately succeed on the merits of her various claims,^FN5 the Court finds that Plaintiff's citation to triable issues of fact regarding the dispositive issue of Montefiore's and Jewish Home's care and treatment of the Decedent requires the denial of both summary judgment motions in their entirety.

The Court does not credit the contention, made by both Montefiore and Jewish Home, that Dr. Blom's affirmation is insufficient to defeat summary judgment because it is purportedly conclusory and speculative and does not expressly address every factual assertion in the three moving expert affirmations. Rather, the affirmation furnished by Dr. Blom is a voluminous, 28-page and 100-paragraph long submission in which Dr. Blom sets forth his expert medical opinion in great detail and squarely addresses the merits of Plaintiff's claims sounding in medical malpractice, negligence, and violation of New York Public Health Law §§ 2801-D and 2803-C (see NYSCEF Doc. Nos. 239, 243). There is nothing speculative or conclusory about Dr. Blom's expert affirmation, and the limited case law cited by Montefiore and Jewish Home for the contrary proposition is inapposite and readily distinguishable (see, e.g., Macias v Ferzli, 131 AD3d 673, 676 [2d Dept 2015] [holding that an expert affirmation was insufficient for summary judgment purposes where "(t)he affirmation of their medical expert was conclusory, ignored important facts, and was based on certain factual errors"]; Ramirez v Columbia-Presbyterian Med. Ctr., 16 AD3d 238, 239 [1st Dept 2005] [finding that plaintiffs' expert affirmation was "conclusory" where it "did not address the specific assertions of defendants' experts, particularly as they bore on the issues of malpractice and causation" and noting that "(t)he document was otherwise flawed by its misstatements of the evidence and its unsupported assertions"]; Margolese v Uribe, 238 AD2d 164, 166 [1st Dept 1997] [holding that defendants were entitled to summary judgment dismissing a medical malpractice claim because plaintiff's affidavits in opposition "were incompetent to demonstrate that the treatment provided by defendants failed to comport with accepted medical practice and that such failure was the proximate cause of plaintiff's alleged injury"]).^FN6

All other arguments raised and all evidence submitted on the two motions addressed herein, notwithstanding the absence of specific reference thereto, have been considered by the Court and are unavailing or are rendered academic in light of the determinations herein.

Accordingly, it is hereby

ORDERED that Motion Seq. No. 3 is DENIED; and it is further

ORDERED that Motion Seq. No. 4 is DENIED; and it is further

ORDERED that the parties are referred to the Settlement Conference Part for a settlement conference on a date noticed by the Settlement Conference Part; and it is further

ORDERED that within five (5) days hereof, Plaintiff shall serve a copy of this Decision and Order, with Notice of Entry, upon Defendants.

This constitutes the Decision and Order of the Court.

Dated: May 19, 2026

White Plains, New York

HON. DIANE M. CLERKIN

Justice of the Supreme Court