Nunez v New York Organ Donor Network, Inc.

Nunez v New York Organ Donor Network, Inc. 2012 NY Slip Op 01373 Decided on February 23, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 23, 2012
Tom, J.P., Friedman, Sweeny, Moskowitz, DeGrasse, JJ.
6905 14097/06

[*1]Olga Romero Nunez, et al., Plaintiffs-Respondents-Appellants,

v

New York Organ Donor Network, Inc., Defendant-Appellant-Respondent.




Wilson Elser Moskowitz Edelman & Dicker LLP, New York
(Richard E. Lerner of counsel), for appellant-respondent.
Denise Luparello, P.C., Rockville Centre (Denise Luparello of
counsel), for respondents-appellants.

Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 13, 2011, which granted so much of defendant's motion for summary judgment as sought to dismiss the claims of battery, conversion and the loss of the right of sepulcher, and denied so much of the motion as sought to dismiss the claims brought under Public Health Law articles 43 and 43-A, unanimously modified, on the law, to grant the motion as to the Public Health Law claims, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

Article 43 of the Public Health Law provides that "[a] person who acts in good faith in accord with the terms of this article or with the anatomical gift laws of another state is not liable for damages in any civil action or subject to prosecution in any criminal proceeding for his act" (§ 4306[3]). This good faith immunity provision is incorporated into Public Health Law § 4351(10), which provides that "any person or organization acting pursuant to this section, shall be legally responsible for any negligent or intentional act or omission committed by such entity or its employees or agents" (see Colavito v New York Organ Donor Network, Inc., 8 NY3d 43, 56 [2006]). The evidence here presents no issue of fact whether defendant failed to act in good faith in connection with its efforts to obtain the necessary statutory consent for the subject organ donation. Accordingly, all plaintiffs' claims, including those alleging a violation of Public Health Law articles 43 and 43-A, should be dismissed.

Plaintiffs are not entitled to any affirmative relief on their purported cross appeal, because the supplemental record they filed does not contain a notice of cross appeal from the order (see [*2]Gassab v R.T.R.L.L.C., 69 AD3d 511 [2010]; see also Copp v Ramirez, 62 AD3d 23, 27-28 [2009], lv denied 12 NY3d 711 [2009]). In any event, as indicated, the court correctly dismissed their common-law causes of action.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 23, 2012

CLERK