Wainwright v New York City Health & Hosps. Corp.

Wainwright v New York City Health & Hosps. Corp. 2009 NY Slip Op 03160 [61 AD3d 851] April 21, 2009 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, June 10, 2009

Margarette Wainwright et al., Respondents,
v
New York City Health and Hospitals Corporation et al., Appellants.

—[*1] Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Larry A. Sonnenshein and Julian L. Kalkstein of counsel), for appellants.

Ambus-Russell, P.C., Jericho, N.Y. (Gregory T. Ambus of counsel), for respondents.

In an action to recover damages for negligence, the defendants appeal from an order of the Supreme Court, Queens County (Flug, J.), dated March 16, 2007, as amended March 22, 2007, which granted the plaintiffs' motion for summary judgment on the issue of liability.

Ordered that the order, as amended, is affirmed, with costs.

After the plaintiffs' decedent, Ernst Moise, passed away, his body was placed in a refrigerated unit at the Queens General Hospital mortuary for five days. The refrigerator malfunctioned and the body became badly decomposed. The plaintiffs commenced this action to recover damages for negligence.

In support of their motion for summary judgment on the issue of liability, the plaintiffs established that prior to the time the decedent was brought to the hospital mortuary, the defendants had actual notice that there were "problems with temperature fluctuations" as registered on the subject refrigerator unit thermometer, and that the defendants failed to identify and/or correct the malfunction. In opposition thereto, the defendants failed to raise a material issue of fact. [*2]

Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment on the issue of liability (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see also Estate of Scheuer v City of New York, 10 AD3d 272 [2004]; Bambrick v Booth Mem. Med. Ctr., 190 AD2d 646 [1993]). Spolzino, J.P., Santucci, Leventhal and Chambers, JJ., concur.