| Williams v Bayley Seton Hosp. |
| 2013 NY Slip Op 08617 [112 AD3d 917] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Michelle Williams, Appellant, v Bayley SetonHospital et al., Respondents. |
—[*1] Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza ofcounsel), for respondents.
In an action, inter alia, to recover damages for personal injuries, the plaintiff appealsfrom an order of the Supreme Court, Richmond County (McMahon, J.), dated February17, 2012, which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is affirmed, with costs.
In January 2008, the plaintiff was admitted on an inpatient basis to a psychiatric unitof the defendant Baley Seton Hospital. During her stay, the plaintiff was allegedlyassaulted by another patient The plaintiff commenced this action, inter alia, to recoverdamages for personal injuries allegedly inflicted on her by a fellow patient at thedefendant Bayley Seton Hospital, asserting theories of recovery based upon, amongothers, negligence and medical malpractice. The defendants moved for summaryjudgment dismissing the complaint. In support of their motion, the defendants submittedan expert affidavit, although the plaintiff objected to the affidavit on the ground that thedefendants failed to timely disclose their expert. In the order appealed from, the SupremeCourt granted the defendants' motion, based, in part, on the defendants' expert's affidavit.The plaintiff appeals.
With regard to the plaintiff's allegations of simple negligence, "[a] hospital, like anyother property owner, has a duty to protect persons lawfully present on its premises,including patients and visitors, from the reasonably foreseeable criminal or tortious actsof third persons" (Royston vLong Is. Med. Ctr., Inc., 81 AD3d 806, 807 [2011]; see Sandra M. v St. Luke'sRoosevelt Hosp. Ctr., 33 AD3d 875, 878 [2006]). "A hospital also has a specialduty 'to safeguard the welfare of its patients, even from harm inflicted by third persons,measured by the capacity of the patient to provide for his or her own safety' " (SandraM. v St. Luke's Roosevelt Hosp. Ctr., 33 AD3d at 878, quoting N.X. v CabriniMed. Ctr., 97 NY2d 247, 252 [2002]). "Both theories of liability require a showingthat the wrongdoer's conduct was foreseeable to the defendant" (Sandra M. v St.Luke's Roosevelt Hosp. Ctr., 33 AD3d at 878; see N.X. v Cabrini Med. Ctr.,97 NY2d at 253). Here, the defendants established their prima facie entitlement tojudgment as a matter of law on the cause of action alleging ordinary negligence bydemonstrating, among other things, that the alleged assailant's [*2]conduct was not foreseeable to them. In opposition to thedefendants' prima facie showing, the plaintiff failed to raise a triable issue of fact (seeAlvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).
In a cause of action sounding in medical malpractice, a defendant moving forsummary judgment must make a prima facie showing either that there was no departurefrom accepted medical practice, or that any departure was not a proximate cause of thepatient's injuries (see Makinen vTorelli, 106 AD3d 782, 783-784 [2013]; Poter v Adams, 104 AD3d 925, 926 [2013]; Mehra v Nayak, 103 AD3d857, 859-860 [2013]; LeMaire v Kuncham, 102 AD3d 659, 659 [2013]; Stukas v Streiter, 83 AD3d18, 24 [2011]). Once a defendant has made such a showing, the burden shifts to theplaintiff to submit evidentiary facts or materials to rebut the defendant's prima facieshowing, but only as to those elements on which the defendant met the prima facieburden (see Makinen v Torelli, 106 AD3d at 784; LeMaire v Kuncham,102 AD3d at 660; Stukas v Streiter, 83 AD3d at 23-25). Here, insofar as theplaintiff alleged a cause of action sounding in medical malpractice, the defendantsestablished their prima facie entitlement to judgment as a matter of law by demonstratingthe absence of any departure from accepted medical practice, and that, in any event, anydeparture was not a proximate cause of the plaintiff's alleged injuries. Contrary to theplaintiff's contention, under the circumstances of this case, the Supreme Courtprovidently exercised its discretion in considering the defendants' expert's affidavit (see Rivers v Birnbaum, 102AD3d 26 [2012]). In opposition to the defendants' prima facie showing, the plaintifffailed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d at324).
The plaintiff's remaining contentions are either improperly raised for the first time onappeal or without merit.
Accordingly, the Supreme Court properly granted the defendants' motion forsummary judgment dismissing the complaint. Dickerson, J.P., Hall, Cohen and Miller,JJ., concur.