Submitted - May 30, 2017
Finkelstein & Feil, P.C., Bohemia, NY (Michael S.
Finkelstein of counsel), for appellant.
Kerley, Walsh, Matera & Cinquemani, P.C., Seaford, NY
(Lauren B. Bristol of counsel), for respondents.
C. BALKIN, J.P. LEONARD B. AUSTIN SHERI S. ROMAN HECTOR D.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from (1) an order of the Supreme Court,
Nassau County (Palmieri, J.), dated September 18, 2015, which
granted the defendants' motion for summary judgment
dismissing the complaint as time-barred, and (2) a judgment
of the same court entered November 4, 2015, which, upon the
order, is in favor of the defendants and against it
dismissing the complaint.
that the appeal from the order is dismissed; and it is
further, ORDERED that the judgment is affirmed; and it is
further, ORDERED that one bill of costs is awarded to the
appeal from the order must be dismissed because the right of
direct appeal therefrom terminated with the entry of judgment
in the action (see Matter of Aho, 39 N.Y.2d 241,
248). The issues raised on appeal from the order are brought
up for review and have been considered on the appeal from the
judgment (see CPLR 5501[a]).
sole issue to be determined on this appeal is whether the
2%-year statute of limitations applicable to an action
sounding in medical malpractice (see CPLR 214-a) or the
three-year statute of limitations for an ordinary negligence
action (see CPLR 214) is applicable. The critical
factor is the nature of the duty owed to the plaintiff that
the defendant is alleged to have breached. A hospital or
medical facility has a general duty to exercise reasonable
care and diligence in safeguarding a patient, based in part
on the capacity of the patient to provide for his or her own
safety (see Hendrickson v Hodkin, 276NY252, 258-259;
Papa v Brunswick Gen. Hosp., 132 A.D.2d 601, 603).
"The distinction between ordinary negligence and
malpractice turns on whether the acts or omissions complained
of involve a matter of medical science or art requiring
special skills not ordinarily possessed by lay persons or
whether the conduct complained of can instead be assessed on
the basis of the common everyday experience of the trier of
the facts" (Miller v Albany Med. Ctr. Hosp., 95
A.D.2d 977, 978; see Halas v Parkway Hosp., 158
A.D.2d 516, 516-517). Generally, a claim will be deemed to
sound in medical malpractice "when the challenged
conduct 'constitutes medical treatment or bears a
substantial relationship to the rendition of medical
treatment by a licensed physician'" (Weiner v
Lenox Hill Hosp., 88 N.Y.2d 784, 788, quoting
Bleiler v Bodnar, 65 N.Y.2d 65, 72; Rey v Park
View Nursing Home, 262 A.D.2d 624, 626-627; Payette
v Rockefeller Univ., 220 A.D.2d 69, 71-72; Halas v
Parkway Hosp., 158 A.D.2d at 516-517). Thus, when the
complaint challenges a medical facility's performance of
functions that are "an integral part of the process of
rendering medical treatment" and diagnosis to a patient,
such as taking a medical history and determining the need for
restraints, the action sounds in medical malpractice
(Scott v Uljanov, 74 N.Y.2d 673, 675; see Caso v
St. Francis Hosp., 34 A.D.3d 714, 714-715; Rey v
Park View Nursing Home, 262 A.D.2d at 626-627; Smee
v Sisters of Charity Hosp. of Buffalo, 210 A.D.2d 966,
967; Fox v White Plains Med. Ctr., 125 A.D.2d 538).
in support of their motion for summary judgment dismissing
the complaint as time-barred, the defendants established,
prima facie, that this action, commenced on April 12, 2012,
was barred by the 2%-year statute of limitations applicable
to medical malpractice actions. The defendants' evidence
showed that on April 12, 2009, the plaintiff s decedent, Ruby
Bell (hereinafter the decedent), was admitted to New Island
Hospital with a history of dementia, and placed on "Fall
Prevention Protocol." After the decedent was found
standing at her bedside trying to remove her foley catheter,
a physician ordered that she be restrained with a vest and
wrist restraints. On the morning of April 18, 2009, the
decedent was discovered sitting on the floor next to her bed.
The bed's side rails were up and the decedent was not
aware of how she came to be on the floor. She had apparently
fallen while trying to climb out of her bed. Thereafter, the
decedent was diagnosed with a distal radius fracture of the
right forearm. The plaintiff alleged that this incident arose
out of the failure of the defendants' staff to follow the
physician's order to restrain her (see Collins v New
York Hosp., 49 N.Y.2d 965, 967; Toth v Community
Hosp. at Glen Cove, 22 N.Y.2d 255, 265; Caso v St.
Francis Hosp., 34 A.D.3d 714; Kless v Paul T.S. Lee,
M.D., P.C., 19 A.D.3d 1083).
opposition to the defendants' prima facie showing of
entitlement to judgment as a matter of law, the plaintiff
failed to raise a triable issue of fact. Contrary to the
plaintiffs contentions, the allegations at issue essentially
challenged the defendants' assessment of the
decedent's supervisory and treatment needs (see Scott
v Uljanov, 74 N.Y.2d 673). Thus, the conduct at issue
derived from the duty owed to the decedent as a result of the
physician-patient relationship and was substantially related
to her medical treatment (see Casov St. Francis
Hosp., 34 A.D.3d 714; Chaff v Parkway Hosp.,
205 A.D.2d 571, 572).
plaintiffs remaining contentions are without merit.
the Supreme Court properly granted the defendants' motion
for summary judgment ...