Opinion
Index No. 68268/2019 Motion Sequence No. 1
03-05-2021
PETER MALASPINA Plaintiff, v. WESTCHESTER MEDICAL CENTER HEALTH CARE CORPORATION, Defendant.
Unpublished Opinion
To commence the 30-day statutory time period for appeals as of right under CPLR 5513(a), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION AND ORDER
HON. DAVID F. EVERETT JUDGE
The following papers were considered on the motion:
Notice of Motion/Attorney Affirmation/Exhibits/Court Notice/ Stipulation/Attorney Affirmation/Affidavit/Stipulation/Reply Affirmation/Exhibits (NYSCEF documents numbered 6-16, 19-20, 23, 25-27)
The plaintiff commenced this action to recover damages for personal injuries. In motion sequence number 1, the defendant moves for summary judgment dismissing the complaint. The plaintiff opposes the defendant's motion. This case was recently reassigned to this Part. For reasons set forth below, the Court denies the defendant's motion.
According to allegations in the complaint, the plaintiff was a patient at the defendant hospital on August 8, 2018. He was in a bed in a room on the fourth floor being attended to by an "Employee Doe". "Employee Doe", on hearing what sounded like gunshots coming from another room on the fourth floor, ran from the room. In so doing, "Employee Doe" knocked over a pitcher of water, spilling its contents on the floor, and left open the door to the room. To protect himself, the plaintiff sought to get out of bed to shut the door but, in getting out of bed, he slipped on the water that had spilled on the floor and fell, sustaining injuries. The plaintiff alleges that the defendant was negligent in, among other things, failing to develop an emergency plan and procedures to effectively deal with active shooter situations, in failing to train its employees in the proper procedures to be followed in active shooter situations, and in failing to take necessary steps to alleviate a dangerous condition.
Evidence in the record indicates that an individual brought a concealed gun onto the defendant's premises and proceeded to the fourth floor where he fatally shot both his wife and then himself.
In moving for summary judgment dismissing the complaint, the defendant contends that it did not breach any duty owed to the plaintiff, as the acts of the gunman on August 8, 2018, were completely unforeseeable, and any breach of a duty owed to the plaintiff was not a proximate cause of the plaintiff's injuries. The defendant also urges that given the circumstances surrounding the active shooter event, it did not have an opportunity to clean up the spilled water that the plaintiff claims he slipped on. In support of its motion, the plaintiff submits, among other things, a transcript of the plaintiff's testimony at an examination conducted pursuant to General Municipal Law § 50-h, an affidavit of its Chief Security Officer, and news articles.
The plaintiff argues that the defendant has not met its prima facie burden of showing its entitlement to judgment as a matter of law and, further, that summary judgment is premature in light of necessary, outstanding discovery. He contends that the active shooter incident was a foreseeable event to the defendant and that the event was but one in a chain of connected events that resulted in the injuries he sustained. Additionally, he urges that the defendant created a dangerous condition through its employee's acts of knocking over a water pitcher and leaving the room door open.
On a motion for summary judgment, the moving party must present prima facie proof demonstrating its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). If the moving party carries this initial burden, then the nonmoving party must produce evidentiary proof in admissible form to require a trial of material issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]). The court must view the evidence in the light most favorable to the nonmoving party (see Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]).
"A party contending that a motion for summary judgment is premature is required to demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant" (Haidhaqi v Metropolitan Transp. Auth., 153 A.D.3d 1328, 1329 [2d Dept 2017] [internal quotation marks omitted]; see Burlington Ins. Co. v Casur Corp., 123 A.D.3d 965, 965-966 [2d Dept 2014]). The mere hope or speculation that evidence to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny a motion for summary judgment (see Burlington Ins. Co. v Casur Corp., 123 A.D.3d at 966; Ruttura &Sons Constr. Co. v Petrocelli Constr., 257 A.D.2d 614, 615 [2d Dept 1999]).
"A hospital, like any other property owner, has a duty to protect persons lawfully present on its premises, including patients and visitors, from the reasonably foreseeable criminal or tortious acts of third persons" (Royston v Long Is. Med. Ctr., Inc., 81 A.D.3d 806, 807 [2d Dept 2011]; see Sandra M. v St. Luke's Roosevelt Hosp. Ctr., 33 A.D.3d 875, 878 [2d Dept 2006]). "A hospital also has a special duty 'to safeguard the welfare of its patients, even from harm inflicted by third persons, measured by the capacity of the patient to provide for his or her own safety'" (Sandra M. v St. Luke's Roosevelt Hosp. Ctr., 33 A.D.3d at 878, quoting N.X. v Cabrini Med. Ctr., 97 N.Y.2d 247, 252 [2002]). "Both theories of liability require a showing that the wrongdoer's conduct was foreseeable to the defendant" (Sandra M. v St. Luke's Roosevelt Hosp. Ctr., 33 A.D.3d at 878; see N.X. v Cabrini Med. Ctr., 97 N.Y.2d at 253).
"A defendant who moves for summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it" (Sloane v Costco Wholesale Corp., 49 A.D.3d 522, 523 [2d Dept 2008] [internal quotation marks omitted]; see Knack v Red Lobster 286, N &D Rests., Inc., 98 A.D.3d 473 [2d Dept 2012]). "Once a defendant has actual or constructive notice of a dangerous condition, the defendant has a reasonable time to undertake remedial actions that are reasonable and appropriate under all of the circumstances" (Friedman v Gannett Satellite Info. Network, 302 A.D.2d 491, 491-492 [2d Dept 2003]; see Alami v 215 E. 68th St., L.P., 88 A.D.3d 924, 925 [2d Dept 2011]).
The Court denies the defendant's summary judgment motion. The defendant moves for summary judgment before the parties have had an adequate opportunity to conduct discovery, as little discovery has taken place and the depositions of the parties have not yet occurred (see CPLR 3212[f]; Guo Ping Gu v Malaxos, _A.D.3d_ 2021 NY Slip Op 01966 [2d Dept March 31, 2021]; Sodhi v 112 Park Enters., LLC, 147 A.D.3d 1000, 1001 [2d Dept 2017]). Moreover, the record reflects that discovery may lead to relevant evidence pertaining to the circumstances of the incident (see Guo Ping Gu v Malaxos, 2021 NY Slip Op 01966). In any event, viewing the evidence in the light most favorable to the nonmoving plaintiff, the defendant fails to establish, prima facie, that the incident was not the result of the defendant's failure to take appropriate remedial measures within a reasonable period of time after acquiring actual notice of a hazardous condition (see Generoso v Miller's Ale House, Inc., 185 A.D.3d 791, 792 [2d Dept 2020]). Accordingly, it is, ORDERED that the defendant's motion for summary judgment dismissing the complaint is denied; and it is further, ORDERED that the defendant must, within ten days of the date of entry, serve a copy of this decision and order with notice of entry upon the plaintiff; and it is further, ORDERED that the defendant must, within ten days after service of the notice of entry, file proof of that service via NYSCEF; and it is further, This constitutes the decision and order of the Court.
May 5, 2021