| Stolarski v DeSimone |
| 2011 NY Slip Op 03583 [83 AD3d 1042] |
| April 26, 2011 |
| Appellate Division, Second Department |
| Arlene Stolarski et al., Respondents, v Donald DeSimoneet al., Appellants. (And a Third-Party Action.) |
—[*1] Lewis Brisbois Bisgard & Smith, LLP, New York, N.Y. (George Catlett of counsel), forappellant Family Services of Westchester, Inc. Law Offices of Anthony J. Pirrotti, P.C., Ardsley, N.Y., for respondents.
In an action to recover damages for wrongful death and conscious pain and suffering, etc., (1)the defendant Family Services of Westchester, Inc., appeals, as limited by its brief, from so muchof an order of the Supreme Court, Westchester County (Colabella, J.), entered January 4, 2010,as denied that branch of its motion which was for summary judgment dismissing the complaintinsofar as asserted against it, and (2) the defendant Donald DeSimone appeals, as limited by hisbrief, from so much of an order of the same court entered January 5, 2010, as denied his separatemotion for summary judgment dismissing the complaint insofar as asserted against him.
Ordered that the order entered January 4, 2010, is affirmed insofar as appealed from; and it isfurther,
Ordered that the order entered January 5, 2010, is reversed insofar as appealed from, on thelaw, and the motion of the defendant Donald DeSimone for summary judgment dismissing thecomplaint insofar as asserted him is granted; and it is further,
Ordered that one bill of costs is awarded to the defendant Donald DeSimone, payable by theplaintiffs, and one bill of costs is awarded to the plaintiffs, payable by the defendant FamilyServices of Westchester, Inc.
On October 15, 2005, Erin Stolarski (hereinafter the decedent) who, since 2004 had sharedan apartment with her then-boyfriend, the defendant Donald DeSimone, took an overdose ofprescription medication in an apparent suicide attempt. DeSimone, a police officer with thepolice [*2]department of the Village of Port Chester, testified athis deposition that he had ended his relationship with the decedent in September 2005, and thatseveral hours prior to the decedent's apparent suicide attempt, he had directed her to move out ofthe apartment. As a result of the suicide attempt, the decedent was hospitalized at GreenwichHospital (hereinafter the hospital). After the decedent was discharged from the hospital onOctober 17, 2005, she moved in with her parents, and was referred to the defendant FamilyServices of Westchester, Inc. (hereinafter Family Services).
After two consultations with a social worker at Family Services, on October 28, 2005, thedecedent returned to DeSimone's apartment, and shot herself in the head with his .45-caliberpistol. Thereafter, the decedent's parents commenced this action against DeSimone and FamilyServices to recover damages for wrongful death and conscious pain and suffering. The SupremeCourt subsequently denied DeSimone's motion and that branch of the separate motion of FamilyServices which was for summary judgment dismissing the complaint insofar as asserted againsteach of them.
"Under certain circumstances, a tortfeasor may be held liable for the suicide of a person thatis the result of the tortfeasor's negligent conduct, provided the suicide is a foreseeableconsequence of the tortfeasor's acts" (Watkins v Labiak, 282 AD2d 601, 602 [2001];see Fuller v Preis, 35 NY2d 425, 429 [1974]; D'Addezio v Agway PetroleumCorp., 186 AD2d 929, 931 [1992]). Here, DeSimone established his prima facie entitlementto judgment as a matter of law by submitting, among other things, his deposition testimony andaffidavit and the plaintiffs' deposition testimony, which demonstrated that DeSimone and thedecedent were no longer living together, nor involved in a relationship at the time the decedententered DeSimone's apartment and shot herself with DeSimone's pistol. Thus, DeSimoneestablished that the decedent's suicide was not a foreseeable consequence of his allegednegligence (see Pinkney v City of New York, 52 AD3d 242, 243 [2008]; Watkins vLabiak, 282 AD2d at 602; Van Valkenburgh v Robinson, 225 AD2d 839, 841[1996]). Moreover, DeSimone made a prima facie showing that he did not violate theWestchester County Gun Safety Act (Westchester County Code § 527.01 et seq.),by submitting his deposition testimony and affidavit, which established that he had engaged thesafety mechanism on his pistol. In opposition to DeSimone's prima facie showing, the plaintiffsfailed to raise a triable issue of fact. Accordingly, the Supreme Court should have grantedDeSimone's motion for summary judgment dismissing the complaint insofar as asserted him.
However, the Supreme Court properly denied that branch of the separate motion of FamilyServices which was for summary judgment dismissing the complaint insofar as asserted againstit, as Family Services failed to establish its prima facie entitlement to such relief. In this regard,the Supreme Court properly declined to consider the expert affidavits proffered by FamilyServices in support of its motion. The experts were not identified by Family Services until afterthe note of issue and certificate of readiness were filed attesting to the completion of discovery,and Family Services offered no valid excuse for the delay (see Gerardi v Verizon N.Y.,Inc., 66 AD3d 960, 961 [2009]; Wartski v C.W. Post Campus of Long Is. Univ., 63AD3d 916, 917 [2009]). Accordingly, since Family Services failed to establish its prima facieentitlement to judgment as a matter of law, that branch of its motion which was for summaryjudgment dismissing the complaint insofar as asserted against it was properly denied, regardlessof the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]).
The parties' remaining contentions either are without merit or need not be addressed in lightof our determination. Covello, J.P., Lott, Roman and Miller, JJ., concur.