| Stubbs v Ellis Hosp. |
| 2009 NY Slip Op 10029 [68 AD3d 1617] |
| December 31, 2009 |
| Appellate Division, Third Department |
| Larry Stubbs, Respondent, v Ellis Hospital et al., Defendants, andMohawk Ambulance Company, Also Known as Parkland Ambulance Service, Inc., et al.,Appellants. |
—[*1] Grasso, Rodriguez & Grasso, Schenectady (Joseph J. Villano of counsel), forrespondent.
Spain, J. Appeal from an order of the Supreme Court (Caruso, J.), entered June 2, 2009 inSchenectady County, which, among other things, denied a motion by defendants MohawkAmbulance Company, Joe Meunier and Robert J. Decker Jr. for summary judgment dismissingthe complaint against them.
Plaintiff, who suffers from a bipolar type of schizoaffective disorder and was experiencingauditory hallucinations, was taken by ambulance to defendant Ellis Hospital in the City ofSchenectady, Schenectady County late in the evening of March 14, 2006. Once there, he wasplaced in a room where he waited approximately six hours for a crisis worker to arrive, duringwhich time his behavior became increasingly bizarre, culminating in his attempt to pull a firealarm. Numerous hospital staff, police officers, and emergency medical technicians employed bydefendant Mohawk Ambulance Company, including defendants Joe Meunier and Robert J.Decker Jr., allegedly rushed toward plaintiff and attempted to restrain him. According toplaintiff, during the resulting struggle, he was "punched, kicked, stomped on, body slammed,[*2]and beaten" by persons he is unable to identify, causing himto sustain injuries including a broken arm.
Subsequently, plaintiff commenced this action against several parties to recover for thepersonal injuries he sustained while being restrained, claiming medical malpractice andnegligence. Thereafter, Mohawk, Meunier and Decker (hereinafter collectively referred to asdefendants) moved for summary judgment dismissing the complaint, contending that neitherthey nor any Mohawk employee had harmed plaintiff. Plaintiff opposed, contending that helacked facts essential to oppose the motion because he was mentally impaired at the time of theinjury and lacked any memory of the incident and, thus, it was unclear who and what caused hisinjuries. Supreme Court agreed and denied defendants' motion pursuant to CPLR 3212 (f).Defendants now appeal.
In reviewing Supreme Court's denial of a motion for summary judgment pursuant to CPLR3212 (f), this Court is guided by whether the court abused its discretion (see Svoboda v OurLady of Lourdes Mem. Hosp., Inc., 20 AD3d 805, 806 [2005]; Pank v Village ofCanajoharie, 275 AD2d 508, 509 [2000]). A court shall grant a motion for summaryjudgment "if, upon all the papers and proof submitted, the cause of action or defense shall beestablished sufficiently to warrant the court as a matter of law in directing judgment in favor ofany party" (CPLR 3212 [b]). However, a court may deny the motion if "it appear[s] fromaffidavits submitted in opposition to the motion that facts essential to justify opposition mayexist but cannot then be stated" (CPLR 3212 [f]; see Svoboda v Our Lady of Lourdes Mem.Hosp., Inc., 20 AD3d at 806; Pank v Village of Canajoharie, 275 AD2d at 509;Darling v Solomon, 227 AD2d 851, 851-852 [1996]). The party opposing the motionmust demonstrate that " 'further discovery might reveal material facts [but] mere speculation willbe insufficient' " (Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d at 806,quoting Scofield v Trustees of Union Coll. in Town of Schenectady, 267 AD2d 651, 652[1999]; see Pank v Village of Canajoharie, 275 AD2d at 509-510).
In moving for summary judgment, defendants relied solely upon affidavits denying any rolein causing plaintiff's injuries. Plaintiff's affidavits submitted in opposition to defendants' motiondemonstrated that further discovery may reveal material facts, including who was involved in theincident and what caused plaintiff's injuries. Plaintiff asserts that due to his mental state at thetime of the incident, he has no recollection of many of the details of or participants in theincident but that additional discovery would facilitate such awareness. Additionally, plaintiff'scounsel submitted an affidavit stating that defendants had not complied with plaintiff's discoverydemands, including production of certain witnesses, thereby contributing to plaintiff's inability togather necessary information. Furthermore, the hospital report contains statements suggestingthat further discovery may reveal material facts regarding who and what caused plaintiff'sinjuries. Accordingly, a triable issue of fact exists that warrants further discovery (seeCPLR 3212 [f]; Svoboda v Our Lady of Lourdes Mem. Hosp., Inc., 20 AD3d at 806;Pank v Village of Canajoharie, 275 AD2d at 509; Darling v Solomon, 227 AD2dat 851-852). As such, we discern no basis upon which to conclude that Supreme Court abused itsdiscretion in denying defendants' motion for summary judgment.
We find that defendants' remaining contentions lack merit.
Cardona, P.J., Mercure, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,with costs.