Judith M. v. Sisters of Charity Hospital

Appellate Division of the Supreme Court of New York

Judith M. v. Sisters of Charity Hospital

249 A.D.2d 890, 671 N.Y.S.2d 400, 1998 N.Y. App. Div. LEXIS 4961

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

DecidedApril 29, 1998

StatusPublished

Cited by9 cases

This text of 249 A.D.2d 890 (Judith M. v. Sisters of Charity Hospital) 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.

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Judith M. v. Sisters of Charity Hospital, 249 A.D.2d 890, 671 N.Y.S.2d 400, 1998 N.Y. App. Div. LEXIS 4961 (N.Y. Ct. App. 1998).

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—Judgment and order affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Howe, J.). We add only that, with respect to plaintiff’s cause of action against defendant Sisters of Charity Hospital (Hospital) for negligent hiring, supervision or retention, the Hospital met its initial burden of establishing that defendant Daryl Ziccarelli, its employee, had no history of, or propensity for, sexual misconduct (see generally, PJI 2:240; see also, Park v New York Cent. & Hudson River R. R. Co., 155 NY 215, 218-219; Gallo v Dugan, 228 AD2d 376, lv denied 90 NY2d 806). Plaintiff’s showing in response that the Hospital had reason to suspect such history or propensity was insufficient to raise an issue of fact. “Suspicion, surmise and accusation are not enough to defeat a motion for summary judgment” (Pappalardo v Meisel, 112 AD2d 277, 278; see also, Shapiro v Health Ins. Plan, 7 NY2d 56, 63).

All concur except Lawton and Balio, JJ., who dissent and vote to reverse in the following Memorandum.

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—Judgment and order affirmed without costs. Memorandum: We affirm for reasons stated in the decision at Supreme Court (Howe, J.). We add only that, with respect to plaintiff’s cause of action against defendant Sisters of Charity Hospital (Hospital) for negligent hiring, supervision or retention, the Hospital met its initial burden of establishing that defendant Daryl Ziccarelli, its employee, had no history of, or propensity for, sexual misconduct (see generally, PJI 2:240; see also, Park v New York Cent. & Hudson River R. R. Co., 155 NY 215, 218-219; Gallo v Dugan, 228 AD2d 376, lv denied 90 NY2d 806). Plaintiff’s showing in response that the Hospital had reason to suspect such history or propensity was insufficient to raise an issue of fact. “Suspicion, surmise and accusation are not enough to defeat a motion for summary judgment” (Pappalardo v Meisel, 112 AD2d 277, 278; see also, Shapiro v Health Ins. Plan, 7 NY2d 56, 63).

All concur except Lawton and Balio, JJ., who dissent and vote to reverse in the following Memorandum.

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249 A.D.2d 890, 671 N.Y.S.2d 400, 1998 N.Y. App. Div. LEXIS 4961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/judith-m-v-sisters-of-charity-hospital-nyappdiv-1998.

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