From Casetext: Smarter Legal Research

Kane v. Ausubel

Appellate Division of the Supreme Court of New York, Second Department
Oct 9, 2007
44 A.D.3d 717 (N.Y. App. Div. 2007)

Opinion

No. 2006-10873.

October 9, 2007.

In an action to recover damages for medical malpractice, etc., the defendant Ian Frederick Ausubel appeals from an order of the Supreme Court, Queens County (Nelson, J.), dated October 17, 2006, which denied his motion for summary judgment dismissing the complaint insofar as asserted against him.

Mulholland, Minion Roe, Williston Park, N.Y. (Brian R. Davey of counsel), for Appellant.

Gary S. Alweiss, Garden City, N.Y. (Theodore A. Naima of counsel), for Respondent.

Before: Schmidt, J.E, Goldstein, Skelos and Fisher, JJ., concur.


Ordered that the order is reversed, on the law, with costs, and the motion of the defendant Ian Frederick Ausubel for summary judgment dismissing the complaint insofar as asserted against him is granted.

The plaintiff's decedent allegedly sustained fatal injuries when he fell from his bed in a nursing home. The defendant Ian Frederick Ausubel (hereinafter the defendant), a physician at the nursing home, established his prima facie entitlement to summary judgment by adducing evidence that he had ordered the use of side rails on the decedent's bed in order to prevent the decedent from falling out. In opposition to the defendant's prima facie showing, the plaintiff failed to raise a triable issue of fact. The expert affidavit proffered by the plaintiff, which relied upon facts contradicted by the record, was speculative and conclusory, and thus did not raise a triable issue of fact ( see Romano v Stanley, 90 NY2d 444, 451-452; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 359).

Accordingly, the defendant's motion for summary judgment dismissing the complaint insofar as asserted against him should have been granted.


Summaries of

Kane v. Ausubel

Appellate Division of the Supreme Court of New York, Second Department
Oct 9, 2007
44 A.D.3d 717 (N.Y. App. Div. 2007)
Case details for

Kane v. Ausubel

Case Details

Full title:PAMELA KANE, Respondent, v. IAN FREDERICK AUSUBEL, Appellant, et al…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Oct 9, 2007

Citations

44 A.D.3d 717 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 7664
843 N.Y.S.2d 656

Citing Cases

Wagner v. Parker

In opposition, the plaintiff failed to raise a triable issue of fact. The expert affidavit proffered by the…

Starling v. Suffolk County Water Authority

In response, the plaintiffs have failed to raise a triable issue of fact. The affidavit of their expert,…