State v. Falter

66 A.D.2d 927, 411 N.Y.S.2d 49, 1978 N.Y. App. Div. LEXIS 14259

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1978
• Status: Published

Opinion

Appeal from an order of the Supreme Court at Special Term, entered June 17, 1977 in Albany County, which denied plaintiff’s motion for summary judgment and granted summary judgment in favor of defendant dismissing the complaint. The plaintiff, without any reference to statutes or common-law precedents, asserts in this court that the father of an infant has an absolute duty to pay any bill which the State as operator of a hospital might submit for hospital services rendered to such infant. The present record establishes that the hospital rendered services to an infant, but there is no showing that such services were necessary and/or were provided at the request of the father. Special Term was undoubtedly correct in denying the plaintiff’s motion for summary judgment. The record contains a ledger card which clearly lists "Aetna Casualty & Surety” as the surety for the services to be rendered. The hospital chose not to have the father execute an indemnity agreement as was done on a prior occasion and it is clear that the policy of the hospital was only to require secondary liability at most on the part of parents when there was insurance available. In any event, there is no showing that the patient infant was not an insured within the meaning of the insurance policy and, therefore, there is a complete failure of any showing that the father has failed to provide items of necessity for his son. Accordingly, the grant of summary judgment in favor of the father was appropriate upon this record. Order affirmed, without costs, and without prejudice to any rights or claims the State of New York may have against Aetna Casualty and Surety. Kane, J. P., Main, Larkin, Mikoll and Herlihy, JJ., concur.