| Smolian v Port Auth. of N.Y. & N.J. |
| 2015 NY Slip Op 04113 [128 AD3d 796] |
| May 13, 2015 |
| Appellate Division, Second Department |
[*1]
| Nicholas Smolian, Appellant, v Port Authorityof New York and New Jersey et al., Respondents, et al.,Defendants. |
Solomon Rosengarten, Brooklyn, N.Y., for appellant.
James M. Begley, New York, N.Y. (Megan Lee of counsel), for respondents PortAuthority of New York and New Jersey, Anthony Croce, Daniel Francis, and RafaelRuiz.
Martin Clearwater & Bell LLP, New York, N.Y. (Barbara D. Goldberg,Kenneth R. Larywon, and Jacqueline D. Berger of counsel), for respondent JamaicaHospital and Medical Center.
Gordon & Silber, New York, N.Y. (Eldar Mayouhas and Andrew B. Kaufmanof counsel), for respondent Jamaica Psychiatric Services.
Ivone, Devine & Jensen, LLP, Lake Success, N.Y. (Robert Devine of counsel),for respondent Franck Paul.
In an action, inter alia, to recover damages for false arrest and assault and battery, theplaintiff appeals from an order of the Supreme Court, Queens County (Flug, J.), enteredSeptember 13, 2012, which granted the motion of the defendants Port Authority of NewYork and New Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz for summaryjudgment dismissing the complaint and the supplemental complaint insofar as assertedagainst the defendant Port Authority of New York and New Jersey and the complaintinsofar as asserted against the defendants Anthony Croce, Daniel Francis, and RafaelRuiz, the separate motion of the defendant Jamaica Hospital and Medical Center forsummary judgment dismissing the complaint and the supplemental complaint insofar asasserted against it, and the separate motions of the defendant Jamaica PsychiatricServices and the defendant Franck Paul for summary judgment dismissing thesupplemental complaint insofar as asserted against each of them.
Ordered that the notice of appeal is deemed to be a notice of appeal by the plaintiff(see Matter of Tagliaferri v Weiler, 1 NY3d 605 [2004]); and it is further,
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting those branches of the motion of the defendants Port Authority of New York andNew Jersey, Anthony Croce, Daniel Francis, and Rafael Ruiz which were for summaryjudgment dismissing the causes of action alleging false arrest and assault and batteryinsofar as asserted against [*2]the defendant PortAuthority of New York and New Jersey, and substituting therefor a provision denyingthose branches of the motion, (2) by deleting the provisions thereof granting thosebranches of the motion of the defendants Port Authority of New York and New Jersey,Anthony Croce, Daniel Francis, and Rafael Ruiz which were for summary judgmentdismissing the complaint insofar as asserted against the defendants Anthony Croce,Daniel Francis, and Rafael Ruiz, and substituting therefor a provision denying thosebranches of the motion, and (3) by deleting the provisions thereof granting thosebranches of the separate motion of the defendant Jamaica Hospital and Medical Centerwhich were for summary judgment dismissing the causes of action alleging that it isvicariously liable for the alleged medical malpractice of the defendant Franck Paul, andsubstituting therefor a provision denying those branches of the motion; as so modified,the order is affirmed, with one bill of costs to the plaintiff, payable by the defendants PortAuthority of New York and New Jersey, Anthony Croce, Daniel Francis, and RafaelRuiz and the defendant Jamaica Hospital and Medical Center, appearing separately andfiling separate briefs, and one bill of costs to the defendant Jamaica Psychiatric Servicesand the defendant Franck Paul, payable by the plaintiff.
On October 12, 2003, the plaintiff was at a parking garage at John F. KennedyInternational Airport (hereinafter the airport) to scout out a suitable location from whichhe could watch the Concorde supersonic transport airplane make one of its finaldepartures. He had with him various papers and diagrams pertaining to areas of theairport that were open to viewing by the public. After a security guard deemed him to be"suspicious," police officers employed by the defendant Port Authority of New York andNew Jersey (hereinafter the Port Authority), including the defendants Anthony Croce,Daniel Francis, and Rafael Ruiz (hereinafter collectively the individual Port Authoritypolice officers), arrived at the parking garage and, with the plaintiff's consent, searchedhis shoulder bag and reviewed his papers. The plaintiff testified at his deposition that,although he told Croce and Croce's supervisor that he was there to watch planes, he washandcuffed and transported to the Port Authority police station located at the airport. Onappeal, the Port Authority did not dispute that the plaintiff had not committed anycrimes.
The Port Authority police contacted the Joint Terrorism Task Force of the FederalBureau of Investigation (hereinafter the FBI) and the New York City Police Department,as well as the FBI proper. It was eventually determined that the plaintiff did not pose athreat to national security, and those entities did not intend to respond to the situation.Nonetheless, the Port Authority Police Department contacted emergency medicaltechnicians (hereinafter EMTs), based on the theory that the plaintiff was an emotionallydisturbed person. Accordingly, EMTs Christina Lijo and Genesia Santiago arrived at thePort Authority police station, and transported the plaintiff to the defendant JamaicaHospital and Medical Center (hereinafter JHMC) against his will, accompanied by a PortAuthority police officer. While at JHMC, the plaintiff was evaluated by the defendantFranck Paul, a psychiatrist. Paul determined that the plaintiff was suffering from bipolardisorder, and directed the forcible injection of a tranquilizer into the plaintiff, as well asthe drawing of blood from the plaintiff. The plaintiff was kept overnight involuntarily inJHMC's emergency room and was discharged the following morning by a differentpsychiatrist.
As is relevant to this appeal, in a complaint dated September 27, 2004, the plaintiffasserted several causes of action against the Port Authority, the individual Port Authoritypolice officers, and JHMC. In a supplemental complaint dated October 5, 2006, theplaintiff asserted causes of action against the Port Authority, JHMC, Paul, and JamaicaPsychiatric Services (hereinafter JPS), Paul's employer. In an order dated September 6,2012, the Supreme Court granted the separate motions of the Port Authority and theindividual Port Authority police officers, JHMC, Paul, and JPS for summary judgmentdismissing the complaint and, insofar as relevant, the supplemental complaint, insofar asasserted against each of them, concluding, inter alia, that the Port Authority policeofficers had probable cause to arrest the plaintiff, that Paul did not engage in medicalmalpractice when he involuntarily confined the plaintiff to the emergency roomovernight, and that many of the plaintiff's causes of action were barred by the applicablestatutes of limitations. The plaintiff appeals.
Initially, the plaintiff contends that the Supreme Court erred in awarding summaryjudgment to the Port Authority and the individual Port Authority police officersdismissing the [*3]causes of action to recover damagesfor false arrest and assault and battery insofar as asserted against them. We agree.Although "[p]robable cause to believe that a person committed a crime is a completedefense to an action alleging false arrest or false imprisonment, whether brought understate law or 42 USC § 1983" (Rodgers v City of New York, 106 AD3d 1068, 1069[2013]; see Wasilewicz vVillage of Monroe Police Dept., 3 AD3d 561, 562 [2004]), here, thesubmissions of the Port Authority and the individual Port Authority police officersrevealed the existence of triable issues of fact as to whether the plaintiff's arrest wasbased on probable cause (seeMacDonald v Town of Greenburgh, 112 AD3d 586, 587 [2013]; Carlton vNassau County Police Dept., 306 AD2d 365, 365-366 [2003]). Indeed, it is not clearwhat crime the plaintiff could have been arrested for.
The Port Authority contends that, even if the record is devoid of any reference towhat crime the plaintiff was thought to have committed, the plaintiff's arrest was lawfulby virtue of Mental Hygiene Law § 9.41. That provision states, in relevantpart, that "[a]ny peace officer, when acting pursuant to his or her special duties, or policeofficer who is a member of the state police or of an authorized police department or forceor of a sheriff's department may take into custody any person who appears to be mentallyill and is conducting himself or herself in a manner which is likely to result in seriousharm to the person or others. Such officer may direct the removal of such person orremove him or her to any hospital specified in subdivision (a) of section 9.39 or anycomprehensive psychiatric emergency program specified in subdivision (a) of section9.40, or, pending his or her examination or admission to any such hospital or program,temporarily detain any such person in another safe and comfortable place, in whichevent, such officer shall immediately notify the director of community services or, ifthere be none, the health officer of the city or county of such action." (Mental HygieneLaw § 9.41.) However, the submissions of the Port Authority and theindividual Port Authority police officers revealed the existence of triable issues of fact asto whether the individual Port Authority police officers could reasonably haveconcluded, under the circumstances confronting them, that the plaintiff had a mentalillness and that he was conducting himself in a manner likely to result in serious harm tohimself or others (cf. Higgins v City of Oneonta, 208 AD2d 1067, 1069-1070[1994]; People v Yaniak, 190 Misc 2d 84, 85-86 [Yates County Court2001]).
The assault and battery causes of action are premised on the individual PortAuthority police officers' contact with the plaintiff during the allegedly unlawful arrest.Since "an assault and battery cause of action may be based on contact during an unlawfularrest, the questions of fact regarding whether the plaintiff's arrest was supported byprobable cause also preclude summary judgment on the cause[s] of action for assault andbattery" asserted against the Port Authority and the individual Port Authority policeofficers (Wyllie v DistrictAttorney of County of Kings, 2 AD3d 714, 718-719 [2003] [citationsomitted]).
Since the Port Authority and the individual Port Authority police officers failed toestablish their prima facie entitlement to judgment as a matter of law dismissing the falsearrest and assault and battery causes of action against them, the Supreme Court shouldhave denied those branches of their motion which were for summary judgmentdismissing those causes of action insofar as asserted against them, regardless of thesufficiency of the plaintiff's opposition papers (see generally Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). For the same reason, the SupremeCourt should have denied those branches of those defendants' motion which were forsummary judgment dismissing the remainder of the complaint insofar as asserted againstthe individual Port Authority police officers.
The Supreme Court properly awarded summary judgment dismissing thesupplemental complaint insofar as asserted against Paul and JPS. However, we disagreewith the court's conclusion that the plaintiff failed to raise a triable issue of fact as toPaul's medical malpractice, which is relevant to certain causes of action asserted againstJHMC. The causes of action asserted against Paul and JPS were barred by either the2
JHMC established, prima facie, that its staff did not commit any independent acts ofnegligence, and that no medical directive issued by Paul was so contraindicated thatJHMC's staff should not have followed it. The plaintiff failed to raise a triable issue offact in opposition to that showing (see Corletta v Fischer, 101 AD3d 929, 930 [2012]; Ballek v Aldana-Bernier, 100AD3d 811, 814 [2012]; Schultz v Shreedhar, 66 AD3d 666, 666-667 [2009]).Accordingly, the Supreme Court properly granted that branch of JHMC's motion whichwas for summary judgment dismissing the cause of action alleging common-lawnegligence.
However, the Supreme Court improperly directed the dismissal of those causes ofaction against JHMC that were premised on Paul's alleged malpractice. JHMC does notdispute that those causes of action were timely interposed (see Parrilla v Buccellato, 102AD3d 664, 664 [2013]; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 55 AD3d821, 823-824 [2008]). Moreover, while a hospital would not ordinarily bevicariously liable for the malpractice of a physician who is not an employee, "anexception to the general rule exists where a patient comes to the emergency room seekingtreatment from the hospital and not from a particular physician of the patient's choosing"(Salvatore v Winthrop Univ.Med. Ctr., 36 AD3d 887, 888 [2007]; see Schiavone v Victory Mem.Hosp., 292 AD2d 365, 366 [2002]; Mduba v Benedictine Hosp., 52 AD2d450, 452 [1976]). In addition, while JHMC made a prima facie showing of its entitlementto judgment as a matter of law by submitting an expert affirmation demonstrating thatPaul did not deviate or depart from accepted standards of practice, the plaintiff, contraryto the Supreme Court's determination, raised a triable issue of fact in opposition to thatshowing through the submission of an expert affirmation. We reject JHMC's contentionthat the affirmation of the plaintiff's expert was conclusory. Since triable issues of factexist as to whether Paul committed malpractice, and as to whether JHMC may be heldvicariously liable therefor, the Supreme Court should have denied those branches ofJHMC's motion which were for summary judgment dismissing the medical malpracticecauses of action insofar as asserted against it (see Ballek v Aldana-Bernier, 100AD3d at 813-814; O'Sullivan v Presbyterian Hosp. in City of N.Y. at ColumbiaPresbyt. Med. Ctr., 217 AD2d 98, 102-103 [1995]).
The plaintiff's remaining contentions either are without merit or need not be reachedin light of our determination. Balkin, J.P., Cohen, Duffy and LaSalle, JJ., concur.