The following papers were read on this motion by defendant for an order granting summary judgment and dismissing plaintiff’s complaint, pursuant CPLR 3212.Papers NumberedNotice of Motion, Affirmation, Affidavit and Exhibits E19-20Affirmation In Opposition, Affidavit, Exhibits E34-35Affirmation In Reply E40
*1 Upon the foregoing papers, it is ordered that this motion is determined as follows: This is an action to recover damages for medical malpractice, negligence, gross negligence, wrongful death, and violations of Public Health Law §§2801-d and 2803-c, arising from the alleged negligence of Defendant in its care and treatment of Ellen Spilgis-Kearney while she was a resident of Defendant from November 29, 2013 through December 13, 2013, following hip surgery. Plaintiff James Brian Kearney, as executor of decedent’s estate, alleges among other things that Defendant failed to properly monitor and medicate decedent, resulting in Coumadin toxicity that in turn caused an intracerebral hemorrhage, and ultimately her death on December 13, 2013.Defendant moves for summary judgment and dismissal of Plaintiff’s complaint, on the grounds that Defendant did not depart from the reasonable and accepted standards of care. Plaintiff opposes the motion.The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by offering sufficient evidence to demonstrate the absence of any material issues of fact (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) When the moving party has met its prima facie burden, the opposing party must set forth evidentiary proof demonstrating the existence of a material issue of fact in order to defeat summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].)“Generally, the elements of a cause of action sounding negligence are: (1) the existence of a duty on the defendant’s part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof.” (Stukas v. Streiter, 83 AD3d 18, 23 [2011].) Medical malpractice is a “species of negligence,” and “a claim sounds in medical malpractice when the challenged conduct constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.” (Weiner v. Lenox Hill Hosp., 88 NY2d 784, 787 [1996].) Put another way, “where the directions given or treatment received by the patient is in issue, consideration of the professional skill and judgment of the practitioner or facility is required and the theory of medical malpractice applies.” (Friedmann v. New York Hospital-Cornell Medical Center, 65 AD3d 850, 851 [1st Dept 2009].)
