Hryniak v. Nathan Littauer Hospital Ass'n

Appellate Division of the Supreme Court of New York

Hryniak v. Nathan Littauer Hospital Ass'n

86 A.D.2d 699, 446 N.Y.S.2d 558, 1982 N.Y. App. Div. LEXIS 15247

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

DecidedJanuary 14, 1982

StatusPublished

Cited by4 cases

This text of 86 A.D.2d 699 (Hryniak v. Nathan Littauer Hospital Ass'n) 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

Hryniak v. Nathan Littauer Hospital Ass'n, 86 A.D.2d 699, 446 N.Y.S.2d 558, 1982 N.Y. App. Div. LEXIS 15247 (N.Y. Ct. App. 1982).

Pincite

Opinion

Appeal from an order of the Supreme Court at Special Term (Walsh, Jr., J.), entered March 23,1981 in Fulton County, which granted defendant’s motion to dismiss the complaint. Plaintiff’s complaint alleges that due to the fact that the defendant hospital was unable to produce X rays of plaintiff taken on December 14, 1977, plaintiff will be unable to prove her cause of action against her surgeon for malpractice. On December 14, 1977, plaintiff was admitted to the defendant hospital for treatment of a fractured knee. X rays were taken on December 14,1977, prior to surgery, and again on December 26, 1977, prior to plaintiff’s discharge. Plaintiff alleges that on December 18,1980, she demanded the release of all X rays and medical records from defendant so that she might commence a malpractice action against her surgeon. Employees of defendant surrendered the medical records and X rays taken on December 26, 1977, but were unable to locate the X rays taken on December 14,1977. Accordingly, plaintiff was unable to submit the December 14,1977 X rays to the medical malpractice review panel. That panel found no evidence of negligence and, as a result of this finding, plaintiff commenced the instant action. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action. Special Term granted the motion to dismiss and this appeal ensued. An action to recover for negligence does not lie unless (1) the defendant owed the plaintiff a duty, (2) the defendant failed to discharge that duty, and (3) the plaintiff suffered damages as a proximate result of such failure (41 NY Jur, Negligence, § 7, p 13). Plaintiff fails to set forth any duty owed to her on the part of defendant to preserve the X rays in question. Moreover, plaintiff has failed to demonstrate that she has suffered any damages as a result of the alleged negligence of defendant. Order affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.

Free access — add to your briefcase to read the full text and ask questions with AI

Appeal from an order of the Supreme Court at Special Term (Walsh, Jr., J.), entered March 23,1981 in Fulton County, which granted defendant’s motion to dismiss the complaint. Plaintiff’s complaint alleges that due to the fact that the defendant hospital was unable to produce X rays of plaintiff taken on December 14, 1977, plaintiff will be unable to prove her cause of action against her surgeon for malpractice. On December 14, 1977, plaintiff was admitted to the defendant hospital for treatment of a fractured knee. X rays were taken on December 14,1977, prior to surgery, and again on December 26, 1977, prior to plaintiff’s discharge. Plaintiff alleges that on December 18,1980, she demanded the release of all X rays and medical records from defendant so that she might commence a malpractice action against her surgeon. Employees of defendant surrendered the medical records and X rays taken on December 26, 1977, but were unable to locate the X rays taken on December 14,1977. Accordingly, plaintiff was unable to submit the December 14,1977 X rays to the medical malpractice review panel. That panel found no evidence of negligence and, as a result of this finding, plaintiff commenced the instant action. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (subd [a], par 7) for failure to state a cause of action. Special Term granted the motion to dismiss and this appeal ensued. An action to recover for negligence does not lie unless (1) the defendant owed the plaintiff a duty, (2) the defendant failed to discharge that duty, and (3) the plaintiff suffered damages as a proximate result of such failure (41 NY Jur, Negligence, § 7, p 13). Plaintiff fails to set forth any duty owed to her on the part of defendant to preserve the X rays in question. Moreover, plaintiff has failed to demonstrate that she has suffered any damages as a result of the alleged negligence of defendant. Order affirmed, with costs. Kane, J. P., Main, Mikoll, Yesawich, Jr., and Weiss, JJ., concur.

Cite This Page — Counsel Stack

Bluebook (online)

86 A.D.2d 699, 446 N.Y.S.2d 558, 1982 N.Y. App. Div. LEXIS 15247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hryniak-v-nathan-littauer-hospital-assn-nyappdiv-1982.

Opinion

Related

Cite This Page — Counsel Stack