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

Opinions

—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.