| Davis v South Nassau Communities Hosp. |
| 2014 NY Slip Op 04893 [119 AD3d 512] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Edwin Davis et al., Appellants, v SouthNassau Communities Hospital et al., Respondents. |
Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Christopher R. Dean andJay J. Massaro of counsel), for appellants.
Bartlett, McDonough & Monaghan, LLP, Mineola, N.Y. (Robert G. Vizza andRobert J. Betz of counsel), for respondent South Nassau Communities Hospital.
Santangelo Benvenuto & Slattery (James W. Tuffin, Roslyn, N.Y., of counsel),for respondents Regina E. Hammock, Christine DeLuca, and Island Medical Physicians,P.C.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from(1) an order of the Supreme Court, Nassau County (Sher, J.), entered July 12, 2012,which granted the separate motions of the defendant South Nassau CommunitiesHospital and the defendants Regina E. Hammock, Christine DeLuca, and Island MedicalPhysicians, P.C., pursuant to CPLR 3211 (a) (7) to dismiss the complaint insofar asasserted against each of them, denied that branch of their cross motion which was forleave to amend the complaint, and denied, in effect, as academic, that branch of theircross motion which was to consolidate this action with two related actions entitledWalsh-Roman v Hammock and Davis v Walsh, pending in the SupremeCourt, Nassau County, under index Nos. 23966/09 and 8405/09, respectively, and (2) ajudgment of the same court entered September 11, 2012, which, upon the order, is infavor of the defendants and against them dismissing the complaint.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents appearing separately andfiling separate briefs.
The appeal from the intermediate order must be dismissed because the right of directappeal therefrom terminated with the entry of the judgment in the action (see Matterof Aho, 39 NY2d 241 [1976]). The issues raised on the appeal from the intermediateorder are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
On March 4, 2009, at approximately 7:27 a.m., Lorraine Walsh went to the [*2]emergency room at the defendant South NassauCommunities Hospital (hereinafter the hospital), complaining of, inter alia, abdominalpain. At the hospital, Walsh was examined by the defendants Regina E. Hammock andChristine DeLuca, who were employed by the defendant Island Medical Physicians, P.C.(hereinafter Island Medical). Walsh was given several medications to, among otherthings, reduce her pain, including a narcotic medication. At approximately 12:30 p.m.,Walsh was discharged from the hospital. At approximately 12:49 p.m., Walsh wasdriving her vehicle when she allegedly became unconscious as a result of the medicationsadministered to her at the hospital, and her vehicle crossed a double yellow line andstruck a bus operated by Edwin Davis, which was traveling in the opposite direction.
Davis, and his wife suing derivatively, commenced this action to recover damagesfor personal injuries arising from medical malpractice against Hammock, DeLuca, andIsland Medical (hereinafter collectively the Island Medical defendants) and the hospital.The hospital and the Island Medical defendants separately moved pursuant to CPLR3211 (a) (7) to dismiss the complaint insofar as asserted against each of them. Theplaintiffs cross-moved for leave to amend the complaint to add a cause of action allegingnegligence, and to consolidate this action with two related actions. In an order enteredJuly 12, 2012, the Supreme Court granted the separate motions of the hospital and theIsland Medical defendants pursuant to CPLR 3211 (a) (7) to dismiss the complaintinsofar as asserted against each of them, denied that branch of the plaintiffs' cross motionwhich was for leave to amend the complaint, and denied, in effect, as academic, thatbranch of the plaintiffs' cross motion which was for consolidation. In a judgment enteredupon the order on September 11, 2012, the Supreme Court dismissed the complaint. Theplaintiffs appeal.
"In considering a motion to dismiss for failure to state a cause of action pursuant toCPLR 3211 (a) (7), the sole criterion is whether from the complaint's 'four cornersfactual allegations are discerned which taken together manifest any cause of actioncognizable at law' " (Nasca v Sgro, 101 AD3d 963, 964 [2012], quotingGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). "[T]he court must affordthe complaint a liberal construction, 'accept the facts as alleged in the complaint as true,accord plaintiffs the benefit of every possible favorable inference, and determine onlywhether the facts as alleged fit within any cognizable legal theory' " (Woss, LLC v 218 Eckford,LLC, 102 AD3d 860, 860 [2013], quoting Leon v Martinez, 84 NY2d83, 87-88 [1994] [citation omitted]).
Viewing the complaint in the light most favorable to the plaintiffs, even as amplifiedby the evidence submitted by the plaintiffs in opposition to the defendants' motions(see Leon v Martinez, 84 NY2d at 87-88), the complaint failed to state a cause ofaction alleging medical malpractice, since only Walsh, and not Davis, had aphysician-patient relationship with the defendants. Accordingly, the allegations did notsupport a duty of care owed by the defendants to the injured plaintiff (Baker v Inamdar, 99 AD3d742, 744 [2012]).
Furthermore, the Supreme Court providently exercised its discretion in denying thatbranch of the plaintiffs' cross motion which was for leave to amend the complaint to adda cause of action alleging simple negligence. "Generally, there is no 'duty to control theconduct of third persons to prevent them from causing injury to others,' even where, as apractical matter, the defendant could have exercised such control" (Citera v County of Suffolk, 95AD3d 1255, 1258 [2012], quoting Purdy v Public Adm'r of County ofWestchester, 72 NY2d 1, 8 [1988]). "However, courts have imposed a duty of carewhere 'there exist special circumstances in which there is sufficient authority and abilityto control the conduct of third persons that [courts] have identified a duty to do so. Thus,[courts] have imposed a duty to control the conduct of others where there is a specialrelationship: a relationship between defendant and [the] third person whose actionsexpose plaintiff to harm such as would require [one] defendant to protect the plaintifffrom the conduct of others' " (Malave v Lakeside Manor Homes for Adults, Inc., 105 AD3d914, 915-916 [2013], quoting Purdy v Public Adm'r of County ofWestchester, 72 NY2d at 8, and Fox v Marshall, 88 AD3d 131, 136 [2011]). Here, theproposed amended complaint failed to allege that the defendants possessed sufficientauthority and ability to control Walsh's conduct so as to give rise to a duty to protectDavis, a member of the general public (see Purdy v Public Adm'r of County ofWestchester, 72 NY2d at 8; Malave v Lakeside Manor Homes for Adults,Inc., 105 AD3d at 915-916; Citera v County of Suffolk, 95 AD3d at 1259; Engelhart v County of Orange,16 AD3d 369, 371-372 [2005]; cf. Fox v Marshall, 88 AD3d at [*3]137-138). Thus, the proposed amendment was palpablyinsufficient and patently devoid of merit (see CPLR 3025 [b]; Ferdico v Zweig, 82 AD3d1151, 1154 [2011]; Wirsingv Donzi Mar. Inc., 30 AD3d 589, 590 [2006]).
The plaintiffs' remaining contentions either are without merit or need not be reachedin light of our determination.
Accordingly, the Supreme Court properly granted the separate motions of thehospital and the Island Medical defendants pursuant to CPLR 3211 (a) (7) to dismiss thecomplaint insofar as asserted against each of them, denied that branch of the plaintiffs'cross motion which was for leave to amend the complaint, and denied, in effect, asacademic, that branch of the plaintiffs' cross motion which was for consolidation. Rivera,J.P., Lott, Miller and Hinds-Radix, JJ., concur. [Prior Case History: 2012 NY SlipOp 31969(U).]