| Mayr v Alvarez |
| 2015 NY Slip Op 05990 [130 AD3d 1199] |
| July 9, 2015 |
| Appellate Division, Third Department |
[*1]
| Giselle Mayr, Appellant, v Dimitri Alvarez,Respondent, et al., Defendant. |
Basch & Keegan, LLP, Kingston (Derek J. Spada of counsel), forappellant.
Fumuso, Kelly, DeVerna, Synder, Swart & Farrell, LLP, Hauppauge (Scott G.Christensen of counsel), for respondent.
Devine, J. Appeal from an order of the Supreme Court (Melkonian, J.), entered April4, 2014 in Ulster County, which, among other things, granted defendant DimitriAlvarez's motion for summary judgment dismissing the complaint against him.
Plaintiff was a patient at defendant Family Practice of Kingston and, on July 26,2008, presented with complaints of chest pain. She and her adult daughter, BrittneyMayr, were ushered into an examination room and plaintiff was examined by defendantDimitri Alvarez. Alvarez listened to plaintiff's heart with a stethoscope, holding it byplacing his entire hand underneath her shirt on her left breast. Alvarez asked plaintiff tolay on the examination table while he listened, and began to blink his eyes rapidly. Hethen began making moaning sounds that plaintiff and her daughter both perceived to besexual, and rubbed his genitalia back and forth against the table. Both women fled theroom in short order, despite Alvarez continuing to hold his hand against plaintiff's breastand shoving her down on the table when she first attempted to escape.
Plaintiff commenced this action in 2009, alleging that Alvarez had committed anassault and battery and that Family Practice had negligently hired and supervised him.Following joinder of issue and discovery, defendants separately moved for summaryjudgment dismissing the complaint. They argued, among other things, that the behaviorof Alvarez was not intentional because his actions were caused by asubsequently-diagnosed seizure disorder. Supreme Court [*2]granted both motions. Plaintiff now appeals, focusingsolely upon the grant of summary judgment to Alvarez.[FN1]
In order for Alvarez to succeed upon his motion for summary judgment, he wasobliged to show that he "did not intentionally place plaintiff in apprehension of imminentharmful or offensive contact, and did not intentionally engage in offensive bodily contactwithout plaintiff's consent" (Guntlow v Barbera, 76 AD3d 760, 766 [2010], appealdismissed 15 NY3d 906 [2010]; see Cicci v Chemung County, 122 AD3d 1181, 1183[2014], lv dismissed and denied 25 NY3d 1062 [2015]). Alvarez endeavors tomake that showing by way of an affirmation from his treating neurologist, AlfredFrontera, who examined him after the July 2008 incident and diagnosed him withhippocampal atrophy. Frontera stated that this condition is associated with partialcomplex seizures in adults, and noted that the medical history of Alvarez suggested thathe suffered from those seizures. Partial complex seizures are characterized by"non-purposeful, stereotyped and repetitive behaviors" that are involuntary, and Fronteraopined that the complained-of behavior was "consistent with" such a seizure. Alvarezaccordingly argued that his actions were wholly involuntary and that he could not haveformed the requisite intent to threaten plaintiff with, or subject her to, offensive physicalcontact (see Restatement [Second] of Torts § 895J, Commentc, Illustration 2; compare Miele by Miele v United States, 800 F2d 50, 53[2d Cir 1986]; Albicocco v Nicoletto, 11 AD2d 690, 690 [1960], affd 9NY2d 920 [1961]).
While Alvarez met his initial burden upon his motion for summary judgment withthe above proof, plaintiff rebutted that showing by raising questions of fact regarding thegenesis of his behavior. Alvarez testified at his deposition that he does not recall the bulkof the incident.[FN2] He does recall deliberately placing astethoscope on plaintiff's chest and listening to her heart, however, and both she and herdaughter stated that he did so in an unusual, groping manner. Both women alsowitnessed the subsequent behavior of Alvarez and, while "[l]ay witnesses cannotproperly give an opinion as to the mental capacity of" an individual, they are free to"state the impressions which the acts and declarations of the [individual] . . .produced upon their minds at the time, and as to whether they were rational or irrational"(Wyse v Wyse, 155 NY 367, 371 [1898]; see Gomboy v Mitchell, 57AD2d 916, 916 [1977]). Both observed what they believed to be deliberate behavior onthe part of Alvarez, such as shoving plaintiff back onto the examination table as sheattempted to get up and turning to watch her daughter as she left the room to get help. Itis also worthy of note that Alvarez attempted to contact plaintiff on several occasionsafter the incident and, while he apologized for the incident, he never expressed his beliefthat it had been caused by a seizure. Inasmuch as the foregoing raised questions of fact asto whether Alvarez committed an assault and battery with the requisite intent, he shouldnot have been granted summary judgment (see e.g. Winslow v Freeman, 257AD2d 698, 699 [1999]; Casimir v Hoffman, 13 AD2d 532, 533[1961]).
[*3] We also agree with plaintiff that,even if the offensive contact stemmed from a seizure and was not intentional, summaryjudgment was not warranted (see e.g. Zgraggen v Wilsey, 200 AD2d 818, 819[1994]). Plaintiff specifically claims that Alvarez owed her a duty to take his anti-seizuremedication and that he could be held liable for his negligent failure to do so. Alvarez hadbeen involved in two automobile accidents prior to the incident at issue, promptingconcerns as to whether he had a seizure disorder. Alvarez accordingly consulted with aneurologist, who did not diagnose him with a seizure disorder. Alvarez also consultedwith medical colleagues in Haiti, however, and one of those individuals indicated thatAlvarez likely did have a seizure disorder and provided him with anti-seizure medication.Alvarez testified that he failed to take the medication on a daily basis because he had notbeen definitively diagnosed with a seizure disorder. This proof permits the inference thatAlvarez was aware that he suffered from a seizure disorder at the time the incidentoccurred which would, in turn, call into question his failure to take the medication on aregular basis. Thus, questions of fact exist as to whether Alvarez failed to "exercis[e]caution to compensate for any increased hazard occasioned by his known disabilities" inconducting his examination of plaintiff (Hosmer v Distler, 150 AD2d 974, 975[1989]; see Restatement [Second] of Torts § 283C).
Peters, P.J., Lahtinen and Garry, JJ., concur. Ordered that the order is modified, onthe law, with costs to plaintiff, by reversing so much thereof as granted defendant DimitriAlvarez's motion for summary judgment dismissing the complaint against him; saidmotion denied; and, as so modified, affirmed.
Footnote 1:Inasmuch as plaintifffailed to raise any issue in her appellate brief as to the grant of summary judgment toFamily Practice, we deem any arguments in that regard to be abandoned (see Waldron v New York Cent.Mut. Fire Ins. Co., 88 AD3d 1053, 1054 n [2011]).
Footnote 2:His supervisor, incontrast, averred that Alvarez did not indicate any problem with his recall after theincident and Alvarez told the supervisor that "he was listening to [plaintiff's] heart. . . and then she got up and left."