        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

837
CA 12-02073
PRESENT: SCUDDER, P.J., SMITH, CENTRA, FAHEY, AND PERADOTTO, JJ.


BONNIE L. BURTON, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MICHAEL T. SCIANO, M.D., ET AL., DEFENDANTS,
AND RITE AID OF N.Y., INC., DOING BUSINESS AS
RITE AID PHARMACY, DEFENDANT-RESPONDENT.


COTE & VAN DYKE, LLP, SYRACUSE (JOSEPH S. COTE, III, OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

BARTH SULLIVAN BEHR, BUFFALO (LAURENCE D. BEHR OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oneida County (Erin P.
Gall, J.), entered August 17, 2012. The order granted the motion of
defendant Rite Aid of N.Y., Inc., doing business as Rite Aid Pharmacy,
to dismiss the complaint and cross claims against it.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
injuries allegedly arising from the medical treatment that she
received for breathing difficulties. Insofar as relevant here,
plaintiff sought damages from defendant Rite Aid of N.Y., Inc., doing
business as Rite Aid Pharmacy (Rite Aid), for its alleged negligence
in filling a prescription that was written by another defendant.
Plaintiff appeals from an order that granted Rite Aid’s motion
pursuant to CPLR 3211 (a) (7) to dismiss the complaint and all cross
claims against it.

     Contrary to plaintiff’s contention, Supreme Court properly
granted Rite Aid’s motion to dismiss the complaint for failure to
state a cause of action. It is well settled that, “[o]n a motion to
dismiss pursuant to CPLR 3211, the pleading is to be afforded a
liberal construction . . . We accept the facts as alleged in the
complaint as true, accord plaintiff[] the benefit of every possible
favorable inference, and determine only whether the facts as alleged
fit within any cognizable legal theory . . . In assessing a motion
under CPLR 3211 (a) (7), however, a court may freely consider
affidavits submitted by the plaintiff to remedy any defects in the
complaint . . . and ‘the criterion is whether the proponent of the
pleading has a cause of action, not whether he [or she] has stated
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                                                         CA 12-02073

one’ ” (Leon v Martinez, 84 NY2d 83, 87-88; see Sokoloff v Harriman
Estates Dev. Corp., 96 NY2d 409, 414).

     With respect to the sufficiency of the complaint before us, we
note that in New York “ ‘[t]he standard of care which is imposed on a
pharmacist is generally described as ordinary care in the conduct of
his [or her] business. The rule of ordinary care as applied to the
business of a druggist means the highest practicable degree of
prudence, thoughtfulness and vigilance commensurate with the dangers
involved and the consequences which may attend inattention’ ” (Eberle
v Hughes, 77 AD3d 1398, 1399). “Generally, a pharmacist cannot be
held liable for negligence in the absence of an allegation that he or
she failed to fill a prescription precisely as directed by the
physician or was aware that the customer had a condition that would
render the prescription of the drug at issue contraindicated”
(Brumaghim v Eckel, 94 AD3d 1391, 1392; see Elliott v A.H. Robins Co.,
262 AD2d 132, 132-133, appeal dismissed 94 NY2d 835, lv dismissed in
part and denied in part 94 NY2d 895). Here, because plaintiff failed
to allege that the dosage “fell below or exceeded the medically
acceptable range of dosages that should be provided under any
circumstance” (Brumaghim, 94 AD3d at 1393), that Rite Aid did not
follow the prescribing physician’s directions, or that Rite Aid was
aware that the drug was contraindicated for plaintiff, the court
properly concluded that the complaint fails to state a cause of action
for negligence on the part of Rite Aid (see id. at 1393-1395).

     Contrary to plaintiff’s further contention, she failed to
establish through an expert’s affidavit that the pharmacy profession
itself has created a different standard of care from that set forth
herein. In support of that contention, plaintiff submitted the
affidavit of a pharmacist who opined that “[t]he dose [of prednisone
prescribed for plaintiff] triggers the need to contact the prescribing
physician to double check the dosage and to notify the patient of the
very high dose and risks associated with that dose.” “ ‘[O]rdinarily,
the opinion of a qualified expert that a plaintiff’s injuries were
caused by a deviation from relevant industry standards would’ [be
sufficient to allege a violation of a professional standard of care] .
. . Where the expert’s ultimate assertions are speculative or
unsupported by any evidentiary foundation, however, the opinion should
be given no probative force and is insufficient to” establish a
violation of a standard of care (Diaz v New York Downtown Hosp., 99
NY2d 542, 544; see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1, 9).
Thus, an expert’s affidavit is insufficient to establish that a
standard of care exists where it is “devoid of any reference to a
foundational scientific basis for its conclusions” (Romano v Stanley,
90 NY2d 444, 452). Here, the expert cites no industry standard,
treatise or other authority in support of his opinion regarding the
standard of care (see Buchholz, 5 NY3d at 8-9; Nathan v Rochester
Hous. Auth., 68 AD3d 1820, 1820-1821), and plaintiff therefore failed
to establish that the pharmacy profession itself imposes a different
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                                                         CA 12-02073

standard of care from that set forth in the applicable case law.




Entered:   October 4, 2013                      Frances E. Cafarell
                                                Clerk of the Court
