| Lingfei Sun v City of New York |
| 2012 NY Slip Op 06585 [99 AD3d 673] |
| October 3, 2012 |
| Appellate Division, Second Department |
| Lingfei Sun, Appellant, v City of New York et al.,Defendants, and New York City Health and Hospitals Corporation et al.,Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Edward F.X. Hart and Jane L.Gordon of counsel), for respondents.
In a consolidated action, inter alia, to recover damages for false imprisonment and medicalmalpractice, the plaintiff appeals, as limited by her brief, from (1) so much of an order of theSupreme Court, Queens County (Flug, J.), dated February 28, 2011, as denied that branch of hermotion which was to vacate an order of the same court dated December 3, 2010, consolidating anaction pending in the Supreme Court, Queens County, under index No. 19895/06 with an actionpending in the Supreme Court, Queens County, under index No. 5240/06, and (2) so much of anorder of the same court dated August 3, 2011, as granted that branch of the motion of thedefendants New York City Health and Hospitals Corporation, Elmhurst Hospital, Yuan FengChen, and Shanwan Chen which was for summary judgment dismissing the complaint filedunder index No. 5240/06 insofar as asserted against them, and granted that branch of the separatemotion of the defendants New York City Health and Hospitals Corporation, Elmhurst Hospital,Mihai Jordace, Li Yun, Richard Wang, Yuan Feng Chen, and Lee Hyekyung, which was forsummary judgment dismissing the complaint filed under index No. 19895/06 insofar as assertedagainst them.
Ordered that the orders dated February 28, 2011, and August 3, 2011, are affirmed insofar asappealed from, with one bill of costs.
The plaintiff commenced two actions to recover damages for, inter alia, false imprisonmentand medical malpractice after being involuntarily hospitalized on four separate occasionsbetween August 2003 and September 2005. The defendants New York City Health and HospitalsCorporation, Elmhurst Hospital, Yuan Feng Chen, and Shanwan Chen (hereinafter collectivelythe First Action defendants), moved for summary judgment dismissing the complaint in the firstaction, and the defendants New York City Health and Hospitals Corporation, Elmhurst Hospital,Mihai Jordace, Li Yun, Richard Wang, Yuan Feng Chen, and Lee Hyekyung (hereinaftercollectively the Second Action defendants), moved for summary judgment dismissing thecomplaint in the second action. After the defendants made their respective motions, the SupremeCourt consolidated the actions in an order dated December 3, 2010. In an order dated February28, 2011, the court denied that branch of the plaintiff's motion which was to vacate the December3, 2010 order.[*2]
The power to order consolidation rests in the sounddiscretion of the court and should be granted in the interest of judicial economy where commonissues of law or fact exist. Consolidation should not be granted where prejudice to a substantialright is shown (see Skelly v Sachem Cent. School Dist., 309 AD2d 917 [2003]). Here,the plaintiff failed to show prejudice to a substantial right (see Westhampton Cabins &Cabanas Owners Corp. v Westhampton Bath & Tennis Club Owners Corp., 277 AD2d 448[2000]; Okin v White Plains Hosp., 97 AD2d 399 [1983]). "The mere desire to haveone's dispute heard separately does not, by itself, constitute a 'substantial right' " (Matter ofVigo S. S. Corp. [Marship Corp. of Monrovia], 26 NY2d 157, 162 [1970], cert deniedsub nom. Frederick Snare Corp. v Vigo Steamship Corp., 400 US 819 [1970], quotingMatter of Symphony Fabrics Corp. [Bernson Silk Mills], 12 NY2d 409, 412 [1963]).Therefore, the Supreme Court properly denied that branch of the plaintiff's motion which was tovacate its order consolidating the subject actions.
The First Action defendants established their prima facie entitlement to judgment as a matterof law dismissing the causes of action relating to the plaintiff's hospitalization beginning August2, 2003, as time-barred (see CPLR 215, 214-a). In opposition, the plaintiff failed to raisea triable issue of fact (see generally Plummer v New York City Health & Hosps. Corp.,98 NY2d 263, 268 [2002]). The Supreme Court therefore properly granted that branch of theFirst Action defendants' motion which was for summary judgment dismissing the causes ofaction relating to the August 2, 2003, hospitalization.
As to the plaintiff's claims relating to her other hospitalizations, "[c]ommitment pursuant toMental Hygiene Law article 9 is privileged in the absence of medical malpractice. Therefore, inorder to prevail on her cause of action sounding in false imprisonment, the plaintiff must provemedical malpractice" (Ferretti v Town of Greenburgh, 191 AD2d 608, 610 [1993][citations omitted]; see Tewksbury v State of New York, 273 AD2d 376 [2000];Matter of E.K. v State of New York, 235 AD2d 540, 541 [1997]). On a motion forsummary judgment dismissing a medical malpractice cause of action, a defendant must make aprima facie showing that there was no departure from good and accepted medical practice, or thatthe plaintiff was not injured by any such departure (see Salvia v St. Catherine of Sienna Med. Ctr., 84 AD3d 1053[2011]; Ahmed v New York City Health& Hosps. Corp., 84 AD3d 709, 710 [2011]; Stukas v Streiter, 83 AD3d 18, 24-26 [2011]). Once a defendanthas made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts ormaterials to rebut the prima facie showing by the defendant . . . so as to demonstratethe existence of a triable issue of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; see Stukas v Streiter, 83 AD3d at 24). General allegations that are conclusory andunsupported by competent evidence tending to establish the essential elements of medicalmalpractice are insufficient to defeat a defendant's motion for summary judgment (see Salviav St. Catherine of Sienna Med. Ctr., 84 AD3d at 1054; Ahmed v New York City Health& Hosps. Corp., 84 AD3d at 711).
In support of their respective motions for summary judgment dismissing the claims relatingto the remaining hospitalizations, the First Action defendants and the Second Action defendants(hereinafter collectively the defendants) submitted an affirmation of a psychiatrist who reviewedthe plaintiff's medical records and found that each decision to involuntarily commit the plaintiffdid not deviate from accepted standards of medical practice. In addition, the defendantssubmitted the plaintiff's medical records for each hospital stay which showed, inter alia, that theprovisions of the Mental Hygiene Law were complied with for each commitment. Thus, thedefendants established their prima facie entitlement to judgment as a matter of law dismissing thefalse imprisonment and medical malpractice causes of action (see Tewksbury v State of NewYork, 273 AD2d at 376; Ferretti v Town of Greenburgh, 191 AD2d 608 [1993];Gonzalez v State of New York, 110 AD2d 810, 812-813 [1985]; cf. Welch v Countyof Westchester, 150 AD2d 371 [1989]; see also Matter of Robert K., 43 AD3d 922, 923 [2007]).
In opposition, the plaintiff failed to raise a triable issue of fact. Since a medical diagnosis isoutside the experience and knowledge of an ordinary lay person, the plaintiff was required tosubmit an expert medical opinion in opposition (see Ferretti v Town of Greenburgh, 191AD2d at 610). The plaintiff submitted her own affidavit, which was insufficient to raise a triableissue of fact (see Masik v Lutheran Med.Ctr., 92 AD3d 733, 734 [2012]; Savage v Quinn, 91 AD3d 748, 750 [2012]; Thomas v Richie, 8 AD3d 363,364 [2004]; Tewksbury v State of New York, 273 AD2d at 376; Matter [*3]of E.K. v State of New York, 235 AD2d at 541; Ferretti vTown of Greenburgh, 191 AD2d at 608).
To the extent that the pleadings can be read to assert a cause of action to recover damages forintentional infliction of emotional distress, the defendants' submissions established that they didnot engage in extreme and outrageous conduct or act with the intent to cause, or in disregard of asubstantial probability of causing, severe emotional distress (see Bernat v Williams, 81 AD3d 679 [2011]). In opposition, theplaintiff failed to raise a triable issue of fact.
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly granted those branches of the defendants' separatemotions which were for summary judgment dismissing the complaint. Angiolillo, J.P., Florio,Belen and Roman, JJ., concur.