Simington v. City of New York , 2018 NY Slip Op 3479 ( 2018 )

Simington v City of New York (2018 NY Slip Op 03479)

Simington v City of New York

2018 NY Slip Op 03479

Decided on May 15, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 15, 2018
Richter, J.P., Andrias, Webber, Gesmer, Moulton, JJ.

6557 26969/03

[*1]Kenneth Simington, Plaintiff-Appellant,

v

The City of New York, et al., Defendants, The New York City Health and Hospital Corporation, Defendant-Respondent.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Tahirih M. Sadrieh of counsel), for respondent.

Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered October 23, 2015, which granted the motion of New York City Health & Hospitals Corporation (HHC) for summary judgment dismissing the complaint as against it, unanimously affirmed, without costs.

HHC established its entitlement to judgment as a matter of law by submitting evidence showing that plaintiff's injury occurred at the moment of his assault by two other inmates, and that there was no treatment they could have been rendered that would have prevented his blindness that was caused by the blunt force trauma he sustained during the assault (see e.g. Bullard v St. Barnabas Hosp., 27 AD3d 206 [1st Dept 2006]). In opposition, plaintiff failed to raise a triable issue of fact. The evidence plaintiff submitted was speculative and insufficient to raise an issue of fact as to whether HHC had departed from the standard of care or whether such alleged departures were a proximate cause of the blindness (see Jackson v Montefiore Med. Center/The Jack D. Weiler Hosp. of the Albert Einstein Coll. of Medicine, 146 AD3d 572 [1st Dept 2017]; Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [1st Dept 2006]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 15, 2018

CLERK