DMYTRYSZYN v. Herschman

• Decision Date: 29 August 2012
• Citation: 2012 N.Y. Slip Op. 06061,98 A.D.3d 715,950 N.Y.S.2d 401
• Parties: John DMYTRYSZYN, etc., respondent, v. Zvi HERSCHMAN, etc., et al., appellants, et al., defendants.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 715

950 N.Y.S.2d 401

2012 N.Y. Slip Op. 06061

John DMYTRYSZYN, etc., respondent,

v.Zvi HERSCHMAN, etc., et al., appellants, et al., defendants.

Supreme Court, Appellate Division, Second Department, New York.

Aug. 29, 2012.

Kopff, Nardelli & Dopf LLP, New York, N.Y. (Martin B. Adams of counsel), for appellant Zvi Herschman.

Vouté, Lohrfink, Magro & McAndrew, LLP, White Plains, N.Y. (Laura K. Silverstein of counsel), for appellant Cynthia Ligenza.

Kreindler & Kreindler LLP, New York, N.Y. (Megan W. Benett and David C. Cook of counsel), for respondent.

ANITA R. FLORIO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action, inter alia, to recover damages for wrongful death, etc., the defendant Zvi Herschman appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered June 1, 2011, as denied his motion for summary judgment dismissing so much of the complaint as sought to recover damages for conscious pain and suffering and loss of services, and to recover damages for pecuniary loss based upon alleged lost earnings insofar as asserted against him, and the defendant Cynthia Ligenza separately appeals from so much of the same order as denied her separate motion for the same relief insofar as it related to her.

ORDERED that the order is affirmed, with one bill of costs.

The plaintiff commenced this action, inter alia, to recover damages for wrongful death against, among others, the appellants, alleging that their negligence in performing an anesthesia-assisted rapid opiate detoxification procedure using the drug propofol (hereinafter the AROD procedure) resulted in the death of the plaintiff's wife.

The Supreme Court properly denied those branches of the appellants' respective motions which were for summary judgment dismissing so much of the complaint as sought to recover damages for conscious pain and suffering insofar as asserted against them. “ ‘[W]hile a plaintiff bears the ultimate burden of proof at trial on the issue of conscious pain and suffering, on a motion for summary judgment the defendant bears the initial burden of showing that the decedent did not endure conscious pain and suffering’ ” ( Haque v. Daddazio, 84 A.D.3d 940, 941, 922 N.Y.S.2d 548, quoting Gaida–Newman v. Holtermann, 34 A.D.3d 634, 635, 825 N.Y.S.2d 503;see generally Cummins v. County of Onondaga, 84 N.Y.2d 322, 618 N.Y.S.2d 615, 642 N.E.2d 1071;McDougald v. Garber, 73 N.Y.2d 246, 255, 538 N.Y.S.2d 937, 536 N.E.2d 372;Schild v. Kingsley, 5 A.D.3d 103, 773 N.Y.S.2d 20). The only evidence submitted by the appellants addressing this issue was an expert affidavit concluding that “[c]onscious suffering was not feasible” during the AROD procedure as the decedent was anesthetized and unconscious and thoroughly unaware of impending death during the entire procedure. However, the expert's opinion was conclusory and speculative, and thus, was properly accorded no probative force ( see Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544–545, 754 N.Y.S.2d 195, 784 N.E.2d 68;Hambsch v. New York City Tr. Auth., 63 N.Y.2d 723, 725, 480 N.Y.S.2d 195, 469 N.E.2d 516). Inasmuch as the appellants failed to make a prima facie showing of entitlement to judgment as a matter of law as to damages for conscious pain and suffering, it is unnecessary to review the sufficiency of the plaintiff's opposition papers on this issue ( see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;...