| McCreary v St. Luke's-Roosevelt Hosp. Ctr. |
| 2011 NY Slip Op 00263 [80 AD3d 499] |
| January 18, 2011 |
| Appellate Division, First Department |
| David McCreary, Respondent, v St. Luke's-Roosevelt HospitalCenter, Sued Herein as St. Luke's Hospital, Appellant. |
—[*1] Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP, Lake Success(Harry C. Demiris, Jr. of counsel), for respondent.
Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 26, 2009,which denied defendant's motion for summary judgment dismissing the complaint, unanimouslyreversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgmentdismissing the complaint.
Plaintiff, while a voluntary inpatient of defendant hospital's detoxification unit, was injured in aphysical altercation allegedly instigated by another patient. On this record, the hospital was entitled tosummary judgment dismissing plaintiff's complaint alleging negligent supervision of the other patient, asplaintiff failed to rebut the hospital's prima facie showing that it lacked "[a]ctual or constructive notice. . . of prior similar conduct" by the other patient "that would have put a reasonable personon notice to protect against the injury-causing act" (Mirand v City of New York, 84 NY2d 44,49 [1994]; see also Pollock v Bones, 52AD3d 343 [2008] [defendant was entitled to summary judgment dismissing negligent supervisionclaim where there was "no evidence of previous physical altercations between the infant plaintiff and herfellow camper" from which the fellow camper's act "could reasonably have been anticipated"]).Concur—Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ.