Cordero v. Monumental Construction Corp.

Appellate Division of the Supreme Court of New York

Cordero v. Monumental Construction Corp.

300 A.D.2d 103, 751 N.Y.S.2d 464, 2002 N.Y. App. Div. LEXIS 12179

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 12, 2002

StatusPublished

This text of 300 A.D.2d 103 (Cordero v. Monumental Construction Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cordero v. Monumental Construction Corp., 300 A.D.2d 103, 751 N.Y.S.2d 464, 2002 N.Y. App. Div. LEXIS 12179 (N.Y. Ct. App. 2002).

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Opinion

—Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 27, 2002, which, inter alia, granted defendant hospital’s motion for summary judgment to the extent of dismissing plaintiffs false imprisonment claim, and denied said motion with respect to plaintiff’s negligence claim, unanimously modified, on the law, to grant said motion with respect to the negligence claim and, except as thus modified, affirmed, without costs or disbursements.

As plaintiff concedes, the motion court properly found that the statute of limitations barred her false imprisonment claim. Neither the allegations in the complaint nor the record afford a basis for finding that the claim, which was based on plaintiffs brief involuntary commitment when she returned for ongoing treatment after she had been discharged from the defendant hospital, sounded in either ordinary or professional negligence.

The hospital’s report with respect to a September 16, 1995 incident, upon which plaintiff relies to sustain her negligence claim, indicates that as a result of plaintiffs having “bumped r/elbow into wall when ambulating,” X rays were taken and a diagnosis made of “Fx — dislocation [right] elbow.” In moving for summary judgment on this claim, defendant hospital submitted a medical affidavit from an orthopedic surgeon, which went unchallenged, stating that upon review of the X rays taken on admission and the postincident X rays of September 19, 1995 he found that the elbow dislocation and fracture “diagnosed on September 19, 1995, was present on plaintiffs initial x-rays taken upon admission * * * on August 30, 1995.” Plaintiff neither alleges nor shows any other injury. Thus, the only injury shown occurred 17 days before the incident complained of and the cause of action against the hospital based on negligence should therefore have been dismissed. Concur — Buckley, J.P., Sullivan, Rubin, Friedman and Gonzalez, JJ.

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—Order, Supreme Court, Bronx County (Alan Saks, J.), entered March 27, 2002, which, inter alia, granted defendant hospital’s motion for summary judgment to the extent of dismissing plaintiffs false imprisonment claim, and denied said motion with respect to plaintiff’s negligence claim, unanimously modified, on the law, to grant said motion with respect to the negligence claim and, except as thus modified, affirmed, without costs or disbursements.

As plaintiff concedes, the motion court properly found that the statute of limitations barred her false imprisonment claim. Neither the allegations in the complaint nor the record afford a basis for finding that the claim, which was based on plaintiffs brief involuntary commitment when she returned for ongoing treatment after she had been discharged from the defendant hospital, sounded in either ordinary or professional negligence.

The hospital’s report with respect to a September 16, 1995 incident, upon which plaintiff relies to sustain her negligence claim, indicates that as a result of plaintiffs having “bumped r/elbow into wall when ambulating,” X rays were taken and a diagnosis made of “Fx — dislocation [right] elbow.” In moving for summary judgment on this claim, defendant hospital submitted a medical affidavit from an orthopedic surgeon, which went unchallenged, stating that upon review of the X rays taken on admission and the postincident X rays of September 19, 1995 he found that the elbow dislocation and fracture “diagnosed on September 19, 1995, was present on plaintiffs initial x-rays taken upon admission * * * on August 30, 1995.” Plaintiff neither alleges nor shows any other injury. Thus, the only injury shown occurred 17 days before the incident complained of and the cause of action against the hospital based on negligence should therefore have been dismissed. Concur — Buckley, J.P., Sullivan, Rubin, Friedman and Gonzalez, JJ.

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Bluebook (online)

300 A.D.2d 103, 751 N.Y.S.2d 464, 2002 N.Y. App. Div. LEXIS 12179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cordero-v-monumental-construction-corp-nyappdiv-2002.