Fiorentino v. TEC Holdings, LLC

• Decision Date: 09 November 2010
• Citation: 78 A.D.3d 766,911 N.Y.S.2d 146
• Parties: Nicoletta FIORENTINO, etc., respondent, v. TEC HOLDINGS, LLC, appellant.
• Court: New York Supreme Court — Appellate Division

911 N.Y.S.2d 146 78 A.D.3d 766 Nicoletta FIORENTINO, etc., respondent, v. TEC HOLDINGS, LLC, appellant. Supreme Court, Appellate Division, Second Department, New York. Nov. 9, 2010.

Tromello, McDonnell & Kehoe, Melville, N.Y. (Kevin P. Slattery of counsel), for appellant.

Michael Jude Jannuzzi, Huntington, N.Y., for respondent.

PETER B. SKELOS, J.P., THOMAS A. DICKERSON, RANDALL T. ENG, and PLUMMER E. LOTT, JJ.

In an action to recover damages for wrongful death, etc., the defendant appeals from an order of the Supreme Court, Suffolk County (Tanenbaum, J.), dated October 8, 2009, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff's decedent tripped and fell in front of premises owned by the defendant. According to the plaintiff, who witnessed the accident, the fall caused the decedent to strike his head, bleed profusely, and lose consciousness. While waiting for an ambulance to arrive, a doctor performed cardiopulmonary resuscitation. The decedent was transported to a hospital, where he remained until his death three weeks later. The decedent's death certificate, signed by his personal treating physician, stated that the manner of death was "natural causes," and listed "cardiorespiratory arrest" as the immediate cause of death, with cardiac arrhythmia and atherosclerosis as contributing factors. Shortly after the commencement of this action, the defendant moved for summary judgment dismissing the complaint in its entirety upon the sole ground that the decedent's death certificate established that the subject accidentwas not the cause of his death. The Supreme Court denied the defendant's motion, and we affirm.

A properly certified death certificate is prima facie evidence of the facts stated therein ( see Public Health Law § 4103[3]; CPLR 4520). Thus, the defendant made a prima facie showing of its entitlement to judgment as a matter of law dismissing the plaintiff's wrongful death cause of action by submitting a certified copy of the decedent's death certificate, which indicated that he died of natural causes rather than from injuries sustained in the accident ( see Roques v. Noble, 73 A.D.3d 204, 899 N.Y.S.2d 193; see also Stein v. Lebowitz-Pine View Hotel, 111 A.D.2d 572, 573, 489 N.Y.S.2d 635; Anderson v. Commercial Travelers Mut. Acc. Assn., 73 A.D.2d 769, 770, 423 N.Y.S.2d 542). However, in opposition to the motion for summary judgment, the plaintiff submitted an...