July 3, 2013
Jo-Ann Wesolowski, etc., et al., appellants,
St. Francis Hospital, respondent. Index No. 16930/08
Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Keri A. Wehrheim of counsel), for appellants.
Charles E. Kutner, LLP, New York, N.Y. (Bruce R. Friedrich of counsel), for respondent.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, PLUMMER E. LOTT, JEFFREY A. COHEN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Adams, J.), entered April 11, 2012, which granted the defendant's motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.
ORDERED that the order is reversed, on the law, with costs, and the defendant's motion is denied.
On August 12, 2005, the plaintiffs' decedent, then 89 years old, was a patient at the defendant, St. Francis Hospital, when, after getting out of bed in a "confused state, " he began walking through the hallway. The decedent's medical record indicates that he refused assistance, started screaming, and attempted to hit hospital staff. The medical record notes that "[s]afety [was] maintained" and that security personnel appeared immediately to assist. A physician was then called to attend to the decedent and ordered the administration of Haldol. Based on this incident, the plaintiffs commenced the instant action. After issue was joined and some discovery was exchanged, but prior to depositions, the defendant, arguing that the action sounded in medical malpractice, moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In opposition, the plaintiffs argued, iter alia, that the action was not time barred because the gravamen of their complaint sounds in negligence, not medical malpractice. The Supreme Court granted the defendant's motion.
Since the defendant's motion was made after issue was joined, the Supreme Court should have treated it as a motion for summary judgment pursuant to CPLR 3212 (see Rich v Lefkovits, 56 N.Y.2d 276; Piro v Macura, 92 A.D.3d 658, 659; Kavoukian v Kaletta, 294 A.D.2d 646). In doing so, the court was required to give "adequate notice to the parties" that the motion was being converted into one for summary judgment (CPLR 3211[c]; see Rich v Lefkovits, 56 N.Y.2d at 281). Here, the court failed to provide such notice, and the notice requirement was not excused, since the parties did not make it "unequivocally clear" that they were "laying bare their proof" and "deliberately charting a summary judgment course" (Sokol v Leader, 74 A.D.3d 1180, 1183; see Hendrikson v Philbor Motors, Inc., 102 A.D.3d 251). To the contrary, in opposing the defendant's motion, the plaintiffs argued, inter alia, that the motion should be denied as premature pursuant to CPLR 3212(f), since further discovery was needed in order to resolve the statute of limitations issue.
An award of summary judgment would be premature at this stage of the case. CPLR 3212(f) permits a court to deny a motion for summary judgment where it appears that the facts essential to oppose the motion "exist but cannot then be stated" (CPLR 3212[f]; see Jones v American Commerce Ins. Co., 92 A.D.3d 844, 845). " This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion'" (James v Aircraft Serv. Intl. Group, 84 A.D.3d 1026, 1027, quoting Baron v Incorporated Vil. of Freeport, 143 A.D.2d 792, 793; see Gardner v Cason, Inc., 82 A.D.3d 930). Here, the defendant's motion to dismiss the complaint was made prior to the parties conducting depositions. Since the plaintiffs had no personal knowledge of the relevant facts, they should be afforded the opportunity to conduct discovery, including depositions of the defendant's employees and other witnesses that were present during the incident complained of (see Jones v American Commerce Ins. Co., 92 A.D.3d at 845; Gardner v Cason, Inc., 82 A.D.3d at 931).
The parties' remaining contentions are without merit or need not be addressed in light of our determination.
Accordingly, the Supreme Court should have denied the defendant's motion (see Jones v American Commerce Ins. Co., 92 A.D.3d at 845; Gardner v Cason, Inc., 82 A.D.3d at 931).
MASTRO, J.P., RIVERA, LOTT and COHEN, JJ., concur.