| Smolian v Port Auth. of N.Y. & N.J. |
| 2012 NY Slip Op 06290 [98 AD3d 1103] |
| September 26, 2012 |
| Appellate Division, Second Department |
| Nicholas Smolian, Appellant-Respondent, v Port Authorityof New York and New Jersey et al., Defendants, and Jamaica Hospital and Medical Center,Respondent-Appellant. |
—[*1] Martin, Clearwater & Bell, LLP, New York, N.Y. (Barbara D. Goldberg and Kenneth R.Larywon of counsel), for respondent-appellant.
In an action, inter alia, to recover damages pursuant to 42 USC § 1983 for violation offederal constitutional rights under color of state law and for gross negligence, the plaintiffappeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County(Flug, J.), dated December 8, 2010, as granted that branch of the cross motion of the defendantJamaica Hospital and Medical Center which was to dismiss the sixth cause of action pursuant toCPLR 3211 (a) (7), and the defendant Jamaica Hospital and Medical Center cross-appeals, aslimited by its brief, from so much of the same order as denied that branch of its cross motionwhich was to dismiss the seventh cause of action pursuant to CPLR 3211 (a) (7).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
The Supreme Court properly granted that branch of the cross motion of the defendantJamaica Hospital and Medical Center (hereinafter the Hospital) which was to dismiss the sixthcause of action pursuant to CPLR 3211 (a) (7). The sixth cause of action sought to recoverdamages pursuant to 42 USC § 1983 for violation of federal constitutional rights undercolor of state law based on, inter alia, the plaintiff's alleged false arrest and confinement at theHospital, a private entity. Civil commitment by a private entity such as the Hospital, however,does not constitute state action (see Sybalski v Independent Group Home Living Program,Inc., 546 F3d 255, 259-260 [2008]; Hogan v A.O. Fox Mem. Hosp., 346 Fed Appx627, 629 [2009]; Johnson v Unity Health Sys., 2010 WL 1404123, *3, 2010 US DistLEXIS 30727, *8-9 [WD NY 2010]; Doe v Harrison, 254 F Supp 2d 338, 342-343[2003]; Fahie v Rivera, 2009 WL 2780144, *2, 2009 US Dist LEXIS 74759, *3-4 [SDNY 2009]; Okunieff v Rosenberg, 996 F Supp 343 [1998]). Therefore, the Hospitalcannot be liable to the plaintiff pursuant to 42 USC § 1983 (see Sybalski v Indep.Group Home Living Program, Inc., 546 F3d at 257).
The Supreme Court properly denied that branch of the Hospital's cross motion which waspursuant to CPLR 3211 (a) (7) to dismiss the seventh cause of action, which alleged that the[*2]Hospital and its staff engaged in willful, malicious, andgrossly negligent conduct and sought punitive damages based on that conduct. In support of thisbranch of the Hospital's cross motion, the Hospital submitted evidence and argued that itsmanagement did not authorize, participate in, consent to, or ratify the alleged conduct giving riseto such damages or deliberately retain an unfit employee. The evidence submitted by theHospital, however, did not demonstrate that any fact alleged in the complaint was undisputedly"not a fact at all" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see Loughryv Lincoln First Bank, 67 NY2d 369, 378 [1986]; Sokol v Leader, 74 AD3d 1180, 1181-1182 [2010]). Accordingly,dismissal of the seventh cause of action pursuant to CPLR 3211 (a) (7) was not warranted.Dillon, J.P., Balkin, Belen and Chambers, JJ., concur.