Hernandez v. Bronx-Lebanon Hosp. Ctr.

2019 NY Slip Op 7750

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 29, 2019
• Docket: 10239 300491/13
• Status: Published

Opinion

Hernandez v Bronx-Lebanon Hosp. Ctr. (2019 NY Slip Op 07750)

Hernandez v Bronx-Lebanon Hosp. Ctr.

2019 NY Slip Op 07750

Decided on October 29, 2019

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 29, 2019
Renwick, J.P., Manzanet-Daniels, Mazzarelli, Webber, Oing, JJ.

10239 300491/13

[*1] Michael Hernandez, Plaintiff-Appellant,

v

Bronx-Lebanon Hospital Center, Defendant-Respondent.

Mills & Edwards, LLP, New York (Dontè Mills of counsel), for appellant.

Turken, Heath & McCauley, Armonk (Jason D. Turken of counsel), for respondent.

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered on or about October 4, 2018, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Defendant established its prima facie entitlement to judgment as a matter of law in this action where plaintiff sustained injuries during a fight with another individual outside the hospital. The evidence shows that plaintiff voluntarily participated in the physical altercation on defendant's premises, including by taking the first swing. "[O]ne who voluntarily participates in a physical fight cannot recover from a party generally charged with ensuring a safe environment" (Carreras v Morrisania Towers Hous. Co. Ltd. Partnership, 107 AD3d 618, 621 [1st Dept 2013], lv denied 22 NY3d 852 [2013]).

In opposition, plaintiff failed to raise an issue of fact.

Plaintiff's voluntary participation in the fight severed any causal connection between defendant's alleged negligence in providing reasonable security and his injuries (see Vega v Ramirez, 57 AD3d 299, 300 [1st Dept 2008]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 29, 2019

CLERK