McCreary v. St. Luke's-Roosevelt Hospital Center

80 A.D.3d 499, 914 N.Y.S.2d 631

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 18, 2011
• Status: Published

Opinion

Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered October 26, 2009, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment dismissing the complaint.

Plaintiff, while a voluntary inpatient of defendant hospital’s detoxification unit, was injured in a physical altercation allegedly instigated by another patient. On this record, the hospital was entitled to summary judgment dismissing plaintiff’s complaint alleging negligent supervision of the other patient, as plaintiff failed to rebut the hospital’s prima facie showing that it lacked “[a]ctual or constructive notice ... of prior similar conduct” by the other patient “that would have put a reasonable person on notice to protect against the injury-causing act” (Mirand v City of New York, 84 NY2d 44, 49 [1994]; see also Pollock v Bones, 52 AD3d 343 [2008] [defendant was entitled to summary judgment dismissing negligent supervision claim where there was “no evidence of previous physical altercations between the infant plaintiff and her fellow camper” from which the fellow camper’s act “could reasonably have been anticipated”]). Concur — Mazzarelli, J.P., Friedman, McGuire, Renwick and Richter, JJ.