Stewart v Brookdale Univ. Hosp. & Med. Ctr.

2009 NY Slip Op 04049 [62 AD3d 860]

May 19, 2009

Appellate Division, Second Department

As corrected through Wednesday, July 1, 2009

Kerica Stewart, Respondent, v Brookdale UniversityHospital and Medical Center, Appellant.

—[*1]Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Richard E.Lerner and Patrick J. Lawless of counsel), for appellant.

Warner Bernstein & Blumenstock, LLP (Ledy-Gurren Bass & Siff, LLP, New York, N.Y.[Nancy Ledy-Gurren, Alan Bernstein, and Edward J. Gorman], of counsel), forrespondent.

In an action, inter alia, to recover damages for wrongful death, the defendant appeals from somuch of an order of the Supreme Court, Kings County (Levine, J.), dated February 8, 2008, asdenied that branch of its motion which was for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

In response to the defendant's showing of its entitlement to judgment as a matter of law onthe issue of whether it committed medical malpractice in discharging Kevon Stewart, thedecedent's son, from its psychiatric facility on May 6, 2004, the plaintiff established theexistence of a triable issue of fact (see Schrempf v State of New York, 66 NY2d 289,295-296 [1985]; Seibert v Fink, 280 AD2d 661 [2001]; Clark v State of New York,99 AD2d 616, 616-617 [1984]; see generally Alvarez v Prospect Hosp., 68 NY2d320, 324 [1986]).

The defendant's remaining contention is without merit (see Schrempf v State of NewYork, 66 NY2d 289, 294-295 [1985]; Engelhart v County of Orange, 16 AD3d 369, 371 [2005];Clark v State of New York, 99 AD2d 616 [1984]). Skelos, J.P., Florio, Leventhal andHall, JJ., concur.