| Lawlor v Lenox Hill Hosp. |
| 2010 NY Slip Op 05700 [74 AD3d 695] |
| June 29, 2010 |
| Appellate Division, First Department |
| Tammy Lawlor, Esq., et al., Appellants, v Lenox HillHospital, Respondent. |
—[*1] McAloon & Friedman, P.C., New York (Laura R. Shapiro of counsel), forrespondent.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered May 14, 2009,in favor of defendant dismissing the complaint, unanimously affirmed, without costs. Appealfrom order, same court and Justice, entered April 20, 2009, which granted defendant's motion forsummary judgment, unanimously dismissed, without costs, as subsumed in the appeal from thejudgment.
Kevin Herlihy received treatment from defendant Lenox Hill Hospital on three occasions foralcohol-related injuries and conditions. A month after his last hospitalization at Lenox Hill,Herlihy had an alcohol-related seizure which caused him to fall and sustain permanent braindamage. In this medical malpractice action, plaintiffs allege that defendant departed from goodand accepted medical practice by failing to, among other things, psychiatrically evaluate Herlihyduring his three hospitalizations and by failing to involuntarily commit him for further treatment.Defendant moved for summary judgment and the IAS court granted the motion. We affirm.
Plaintiffs never argued below that the affirmations of defendant's experts failed to establishprima facie entitlement to summary judgment and we decline to consider the issue (see Vasquez v Reluzco, 28 AD3d365, 366 [2006]). Were we to consider it, we would find that defendant met its burden ofestablishing that there was no departure from good and accepted medical practice or that anydeparture was not the proximate cause of the injuries alleged (Alvarez v Prospect Hosp.,68 NY2d 320, 326 [1986]).
The IAS court properly determined that plaintiffs' expert failed to raise an issue of fact. First,alcoholism is not considered a mental illness under the Mental Hygiene Law and a person cannotbe involuntarily confined under that statute solely for treatment of alcoholism (seeMental Hygiene Law §§ 9.27, 9.39; see also Matter of Michael S., 166 Misc2d 875 [Sup Ct, Westchester County 1995]). In addition, even if Lenox Hill failed to properlyexamine or treat Herlihy on each occasion he was in the hospital, it is speculative to concludethat these alleged departures proximately caused Herlihy's fall and [*2]resulting brain damage in June 2004 (see generally Nieves vCity of New York, 91 AD2d 938 [1983]). Concur—Andrias, J.P., Friedman, Nardelliand Acosta, JJ.