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

276
CA 10-02251
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IDA G. CARTHON, AS ADMINISTRATRIX OF THE
ESTATE OF ELIGE CARTHON, JR., DECEASED,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

BUFFALO GENERAL HOSPITAL @ DEACONESS SKILLED
NURSING FACILITY DIVISION AND KALEIDA HEALTH,
DEFENDANTS-APPELLANTS.


DAMON MOREY LLP, BUFFALO (MEGHANN N. ROEHL OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

BROWN CHIARI LLP, LANCASTER (THERESA M. WALSH OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Gerald J.
Whalen, J.), entered March 16, 2010 in a wrongful death action. The
order denied the motion of defendants for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting the motion in part and
dismissing the first and second causes of action except insofar as
they allege ordinary negligence on the part of defendants and as
modified the order is affirmed without costs in accordance with the
following Memorandum: Plaintiff, as administratrix of the estate of
her husband (decedent), commenced this action seeking damages for his
wrongful death. Decedent was a resident of a nursing home owned and
operated by defendants when he died at age 68 while eating dinner at
the facility. Decedent suffered from several ailments, including
alcohol-related dementia and complications from a stroke, which left
him unable to speak and with difficulty in swallowing. The care plan
in effect for decedent at the time of his death called for him to be
supervised while eating. According to plaintiff, decedent died as a
result of choking on food during dinner. Following discovery,
defendants moved for summary judgment dismissing the complaint on the
grounds that the causes of action sound in medical malpractice rather
than in ordinary negligence and that defendants established that the
care they provided to decedent did not deviate from the accepted
standard of medical care. Supreme Court denied the motion. We note
at the outset that, in moving for summary judgment, defendants did not
address the third cause of action, which alleges the violation of
specified sections of the Public Health Law. We therefore do not
address that cause of action either.
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                                                         CA 10-02251

     We agree with defendants that the complaint, as amplified by the
bill of particulars, alleges several claims sounding in medical
malpractice and that the court erred in denying their motion with
respect to those claims. We therefore modify the order accordingly.
For instance, the complaint, as amplified by the bill of particulars,
alleges that defendants failed to “enact and follow an appropriate
care plan” for decedent, failed to “change and/or adjust [decedent’s]
care plan,” failed to “update and follow an appropriate plan of care
pursuant to a comprehensive assessment,” failed to “provide adequate
staffing,” and failed to “provide adequate services to maintain
[decedent’s] physical well-being.” Those claims “sound in medical
malpractice because they challenge the [nursing home’s] assessment of
[decedent’s] need for supervision” (Smee v Sisters of Charity Hosp. of
Buffalo, 210 AD2d 966, 967). We further agree with defendants that
they met their initial burden on the motion with respect to those
claims of medical malpractice by submitting the affidavit of their
expert physician, who averred that defendants did not deviate from the
accepted standard of medical care in the treatment and assessment of
decedent (see Elliot v Long Is. Home, Ltd., 12 AD3d 481, 482), and
plaintiff failed to raise a triable issue of fact in opposition (see
generally Zuckerman v City of New York, 49 NY2d 557, 562). Even
assuming, arguendo, that a registered nurse is qualified to render a
medical opinion with respect to the relevant standard of care (cf.
Elliot, 12 AD3d at 482), we conclude that the affidavit of a
registered nurse submitted by plaintiff in opposition to the motion is
insufficient to raise a triable issue of fact (see Selmensberger v
Kaleida Health, 45 AD3d 1435, 1436).

     We conclude, however, that the court properly denied the motion
with respect to the remaining claims, which sound in ordinary
negligence inasmuch as they are based on allegations that defendants’
employees failed to carry out the directions of the physicians
responsible for decedent’s care plan (see Fields v Sisters of Charity
Hosp., 275 AD2d 1004). The complaint, as amplified by the bill of
particulars, alleges that defendants failed to provide proper
supervision and assistance to decedent at dinner on the night in
question, thus causing him to choke to death, and that they failed to
follow their own “aspiration precautions” for the nursing home
residents. Although defendants met their initial burden of
establishing that their employees adequately supervised decedent while
he was eating, we conclude that plaintiff raised a triable issue of
fact sufficient to defeat the motion (see generally Zuckerman, 49 NY2d
at 562). In opposition to the motion, plaintiff submitted, inter
alia, an incident report signed by the nursing home floor manager
stating that the certified nursing assistant assigned to supervise
decedent at dinner was passing trays in the dining room when the
incident occurred.

     We reject defendants’ alternative contention that the court erred
in denying its motion because decedent died of natural causes while he
happened to be eating. Even assuming, arguendo, that defendants met
their initial burden of establishing that decedent died of a heart
attack or a stroke, we conclude that the evidence submitted by
plaintiff in opposition to the motion is sufficient to raise a triable
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                                                         CA 10-02251

issue of fact whether decedent choked to death. Indeed, the medical
records submitted by plaintiff indicate that one of the paramedics who
attempted to resuscitate decedent removed large pieces of food from
his trachea, and one of defendants’ employees testified that decedent
appeared to be choking and that several other employees attempted the
Heimlich Maneuver.




Entered:   April 1, 2011                        Patricia L. Morgan
                                                Clerk of the Court
