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
2½-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, 276
NY 252, 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 2½-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
plaintiff's 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 Caso v St. Francis
Hosp., 34 A.D.3d 714; Chaff v Parkway Hosp.,
205 A.D.2d 571, 572).
plaintiff's remaining contentions are without merit.
the Supreme Court properly granted the defendants' motion
for summary judgment ...