In D'Elia v. Menorah Home & Hosp. for Aged & Infirm, 51 A.D.3d 848 (2d Dep't 2008) plaintiff's cause of action "based on negligence encompassed allegations of medical malpractice and ordinary negligence." Id. at 851. Plaintiff alleged that defendant facility failed to use restraints to safeguard plaintiff's decedent from falling, and alleged that defendant "failed to use any available safety devices or tools to protect the frail, elderly decedent from the risk of falls." Id. Plaintiff did not submit an expert affidavit, but relied on deposition testimony from a nurse at defendant facility who testified that "a range of tools less invasive than restraints is available to safeguard a patient at risk for falls and can be directed without a physician's approval, but that none had been used to protect the decedent." Id. at 850. The Second Department found that the allegation of failure to use restraints sounded in medical malpractice and was properly dismissed because plaintiff failed to rebut defendant's prima facie showing of entitlement to summary judgment with an expert affidavit. Id. at 851. But, the Second Department--citing the rule that "no unnecessary harm befall the patient,"--found that the allegation relating to failure to use any available safety devices sounded in ordinary negligence and did not involve specialized knowledge, and that plaintiff had submitted evidence, including the nurse's testimony, rebutting defendant's prima facie showing that it "exercised reasonable care in supervising the decedent." Id. at 852. The court concluded that defendant was not entitled to summary judgment on the entire cause of action, but rather, was entitled to summary judgment on only that portion of the cause of action sounding in medical malpractice.