Moray v City of Yonkers

Moray v City of Yonkers 2012 NY Slip Op 03611 Decided on May 8, 2012 Appellate Division, Second 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 May 8, 2012
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
REINALDO E. RIVERA, J.P.
RANDALL T. ENG
PLUMMER E. LOTT
SANDRA L. SGROI, JJ.
2011-00083
(Index No. 07-11773)

[*1]Angela Moray, etc., respondent,

v

City of Yonkers, et al., appellants.




Harris Beach PLLC, White Plains, N.Y. (A. Vincent Buzard and
Darius P. Chafizadeh of counsel), for appellant City of Yonkers.
Katz & Rychik P.C., New York, N.Y. (Abe M. Rychik and
Matthew C. Mann of counsel), for
appellant Ahmed Hakki.
Sanocki Newman & Turret, LLP, New York, N.Y. (David B.
Turret, Joshua Fogel, and Carl B.
Tegtmeier of counsel), for respondent.


DECISION & ORDER

In a consolidated action, inter alia, to recover damages for medical malpractice and wrongful death, etc., the defendant City of Yonkers appeals, as limited by its brief, from stated portions of an order of the Supreme Court, Westchester County (Smith, J.), dated November 18, 2010, which, inter alia, denied that branch of its motion which was for summary judgment dismissing so much of the complaint as alleged that it was negligent for failing to properly supervise the plaintiff's decedent, and the defendant Ahmed Hakki appeals from stated portions of the same order which, among other things, denied that branch of his motion which was for summary judgment dismissing so much of the complaint as alleged medical malpractice against him.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

The plaintiff, Angela Moray, was married to the decedent, Gerard Moray, who was employed as a police officer by the defendant City of Yonkers, and under the psychiatric care of the defendant Ahmed Hakki, when he shot and injured her and then fatally shot himself. The plaintiff contended, among other things, that the City was negligent in failing to properly supervise the decedent, and that Hakki's treatment of the decedent was negligent.

The City failed to make a prima facie showing of its entitlement to judgment as a matter of law with respect to the plaintiff's allegations that City's failure to remove the decedent's service revolver and refer him for a mental evaluation were proximate causes of the injuries sustained by the plaintiff when the decedent shot her, and of the decedent's suicide (cf. Cygan v City of New York, 165 AD2d 58). In light of the City's failure to make a prima facie showing, it is unnecessary to consider the sufficiency of the plaintiff's opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). [*2]

The Supreme Court properly denied that branch of Hakki's motion which was for summary judgment dismissing so much of the complaint as alleged medical malpractice against him. Although Hakki made a prima facie showing of entitlement to judgment as a matter of law with the affidavit of his expert witness, demonstrating that he did not depart from good and accepted psychiatric care in his treatment of the decedent, the plaintiff raised triable issues of fact in response to that showing, with the affidavit of her expert witness. Summary judgment should not be awarded with respect to a medical malpractice cause of action where the parties adduce conflicting opinions of medical experts (see McKenzie v Clarke, 77 AD3d 637, 638).

The parties' remaining contentions are without merit.
RIVERA, J.P., ENG, LOTT and SGROI, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court