The following papers having been read on this motion: Notice of Motion 1 OppositioSn 2 Reply 3 Notice of Cross-Motion 4 Opposition (to Cross-Motion) 5 Reply (to Cross-Motion) 6 Plaintiffs move for an order, pursuant to CPLR §3212, seeking judgment as a matter of law for liability, only, on their first and second causes of action. Defendant has opposed the motion in its entirety and has cross-moved to dismiss Plaintiffs’ complaint against it, also pursuant to CPLR §3212. At the time of submission, both motions were fully briefed. After review and consideration, both the motion and the cross-motion are hereby denied in accordance with the following. Plaintiff-Decedent was a resident at Defendant’s facility, located in Great Neck, Nassau County, New York, since September 2015. She remained a resident in Defendant’s facility until her death on January 2, 2017. During her stay, the staff for Defendant became aware that Plaintiff-Decedent was a fall risk and could not ambulate from her wheelchair to her bed, and vice versa; as a result, Plaintiff-Decedent required a Hoyer-lift to move from her bed to her wheel chair and back again. The deposition testimony before the Court appears unchallenged that the staff at Defendant’s facility would use this device to move Plaintiff-Decedent from her bed to her wheelchair in the morning and from the wheelchair to her bed in the afternoon. In the afternoon of January 19, 2016, two members from Defendant’s staff attempted to move Plaintiff-Decedent from her chair to her bed. These staff members, both of whom were nurses, but only one of whom was assigned to Plaintiff-Decedent, assisted her in getting out of her chair and into the Hoyer-left. While the first step in the transfer was completed successfully, as Plaintiff-Decedent was in the air being moved, a support strap ripped, caused Plaintiff-Decedent to fall to the floor. As a result of this fall, Plaintiff-Decedent suffered broken ribs, a punctured lung, and fractures in her back. Plaintiffs also alleged that the fall suffered by Plaintiff-Decedent resulted in her wrongful death. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). Plaintiffs’ motion for summary judgment asserts that liability should be awarded to them on their negligence claim; however, a review of the moving papers indicates that such relief is only sought by Plaintiffs on their first a second causes of action, sounding in negligence and violations of Public Health Law §2801-d and §2803-c. Thus, as Plaintiffs make no showing on their third cause of action sounding in wrongful death, the Court need not address the sufficiency of the motion on that claim. In support of the motion, Plaintiff has submitted a copy of the pleadings with bill of particulars, the deposition transcripts from the director of nursing at the time of the incident and one of the nurses who assisted in the subject move, photos of the subject Hoyer-lift and seat, and two expert affidavits. These exhibits are admissible evidence and can be considered as part of the subject motion. On the other hand, the FDA report on the subject Hoyer-lift, citing an incident from 2008, the incomplete user manual for the subject Hoyer-lift, and the incomplete user manual for the seat used in conjunction with the Hoyer-lift have not been authenticated in any way; moreover, the FDA report lacks any relevance to the subject incident. Accordingly, as these documents are inadmissible, this Court will not consider them as part of the moving papers. The first expert opinion submitted by Plaintiffs is that of a doctor whose practice includes geriatric medicine and internal medicine, Dr. Starer. This expert opines that Defendant should be found negligent for the subject accident because it did not have any protocol for how to inspect the canvas straps attached to the seat of the Hoyer-lift, its employees failed to inspect the seat before it used the Hoyer-lift during the subject move, it performed improper laundry care on the subject seat, it failed to remove and replace old seats, and it failed to restock replacement seats. Not only does this expert reach these conclusions based upon inadmissible documents, but he also forms his opinion based upon speculation. For example, Dr. Starer states that he reviewed the deposition of the assisting nurse, Mr. Vallon, and determined that there was an insufficient amount of available seats relevant to patients on the third floor of Defendant’s facility, citing the testimony in which this witness indicates that there were five (5) lifts on the floor Plaintiff-Decedent was located on and six (6) seats. However, a review of the deposition transcript indicates that this witness was not assigned to any residents that required a Hoyer-lift and he was unsure of how many such residents required the device on the floor or in the entire building. More importantly, prevalent throughout this deposition transcript are statements of uncertainty by the witness, further urging by Plaintiffs’ counsel, and obvious conjecture in the witness’s response, with such sequences objected to by Defendant’s counsel. These speculative statements formed the basis of the opinion of Dr. Starer and cannot be accepted as valid. Another example of conclusions based upon speculation can be found with the opinion of Dr. Starer about the improper laundering of the seats. Dr. Starer concludes that Defendant’s overused these items and dried the seats at temperatures far in excess of that recommended by the manufacturer. These opinions are based not only on inadmissible documents presented to him, but also upon the deposition of the director of nursing for Defendant, Ms. Roberson. Ms. Roberson’s testimony appears clear that there were protocols for the nursing staff as well as separate protocols for the housekeeping staff with regard to the seats for the Hoyer-lifts, and she spoke to her creation and implementation of such protocols at her deposition. Ms. Roberson did not speak to how the seats were laundered, but only when they would be sent to the laundry or discarded. Dr. Starer interpreted this information to mean that no such protocol existed as to how the seats were laundered and that they were laundered contrary to the specifications of the manufacturer. Once again, Dr. Starer formed an opinion based upon pure speculation, taking large strides to reach a conclusion in support of Plaintiffs’ claims. The remaining exhibits submitted by Plaintiffs’ collectively are insufficient to overcome the defects of the expert opinion of Dr. Starer. Therefore, given that Dr. Starer’s opinion is conclusory, based upon speculation, and is unsupported by the record before this Court, Plaintiffs have failed to satisfy their burden on the motion, and summary judgment must be denied on Plaintiff’s first and second cause of action. See Wagner v. Parker, 172 AD3d 954, 100 NYS3d 280 (2nd Dept., 2019); see also Espinal v. Jamaica Hospital Medical Center, 71 AD3d 723, 896 NYS2d 429 (2nd Dept., 2010). As such, the Court need not address the sufficiency of Plaintiff’s papers in opposition to the motion. See Bonilla v. Calabria, 80 AD3d 720, 915 NYS2d 615 (2nd Dept., 2011). Plaintiff has also asserted that the instant case is properly considered under the doctrine of res ipsa loquitur. This doctrine is a rule of evidence, which merely provides a permissible inference of negligence rather than a presumption; as such, the application of the doctrine as a basis for awarding summary judgment is inappropriate. Capolongo v. Giant Carpet, 292 AD2d 331, 738 NYS2d 680 (2nd Dept., 2002). Only in the rarest of cases may a plaintiff win summary judgment under this doctrine, when the plaintiff’s circumstantial proof is so convincing and the defendant’s response so weak that the inference of defendant’s negligence is inescapable. Giantomaso v. T. Weiss Realty Corp., 142 AD3d 950, 37 NYS3d 313 (2nd Dept., 2016). Here, the only assertion remaining that could satisfy Plaintiffs’ burden is that as stated by Dr. Starer, that Defendant’s employees failed to inspect the seat used for Plaintiff-Decedent before its use. However, Plaintiffs’ own moving papers, in which one of the two nurses that assisted this resident in the move affirmatively stated that they did perform such inspection before using the seat and the Hoyer-lift. Given the state of the evidence before the Court, the Court finds the application of the doctrine of res ipsa loquitor would be improper, and the issue of credibility is best left for a jury under the circumstance. Accordingly, the remaining portions of Plaintiffs motion must be denied. Ruiz v. Griffin, 71 AD3d 1112, 898 NYS2d 590 (2nd Dept., 2010). Defendant’s moving papers are supported by the same papers as that submitted by Plaintiffs on their motion, with a few additions; namely, Defendant has included an expert affidavit from a physical therapist, two deposition transcripts from non-parties related to Plaintiffs, and medical records from Plaintiff-Decedent. Of these additional documents submitted by Defendant, only the expert affidavit contains any probative value to the negligence claim of Plaintiffs, as Defendant’s papers do not argue dismissal of the wrongful death claim whatsoever. However, this Court is not satisfied that the physical therapist proffered as an expert has the requisite training, education, knowledge, and experience to be able to provide an expert opinion on the issue of causation in this matter. De Hernandez v. Lutheran Medical Center, 46 AD3d 517, 850 NYS2d 460 (2nd Dept., 2007). Not only has Defendant failed to provide a curriculum vitae for this witness, leaving the Court to rely upon the limited statements contained in the affidavit of the physical therapist as to his background, but there has not been any information provided in the affidavit to suggest this witness is qualified to discuss the appropriateness of the maintenance of the seats in questions as well as the protocols in place for the use of the Hoyer-lift. Even assuming, arguendo, this Court were to accept the statements by this physical therapist as if he were an expert, the affidavit is still insufficient to satisfy Defendant’s burden and warrant dismissal of Plaintiffs’ complaint. The affiant does not speak to the efficacy of the protocols for use of the Hoyer-lift, but rather only that Defendant had a protocol and it appears to have been followed based upon his review. Therefore, for all the foregoing reasons, the Court finds that Defendant has not satisfied its burden and the cross-motion for summary judgment by Defendant is hereby denied at this time. See Erbstein v. Savasatit, 274 AD2d 445, 711 NYS2d 458 (2nd Dept., 2000). Plaintiffs shall file and serve a copy of the within order with notice of entry upon Defendant within thirty (30) days from the date of this order. The parties shall appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on February 24, 2020, at 9:30am so that they may schedule jury selection in this case. This hereby constitutes the decision and order of this Court. Dated: January 29, 2020
